Final Chino Community Center Const Credit Reimbmt Agmt(2159212.8).pdf

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Contract No.: ____________________
Approval Date: ___________________

CONSTRUCTION CREDIT AND REIMBURSEMENT AGREEMENT

THE PRESERVE

PUBLIC USE FACILITIES DEVELOPMENT IMPACT FEE PROGRAM
This CONSTRUCTION CREDIT AND REIMBURSEMENT AGREEMENT
(“Agreement”) is entered into this 20th day of October, 2026 (“Effective Date”), by and between CITY OF CHINO, a California municipal corporation (“City”), and CHINO HOLDING COMPANY, LLC, a Delaware limited liability company qualified to do business in California (“CHC”), CHINO DEVELOPMENT CORPORATION, a California corporation and CHINO PRESERVE DEVELOPMENT CORPORATION, a California corporation (collectively, “Owners”). City and Owner 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 superseding Amended and Restated Development Agreement entered into by City and Owner on June 20, 2023 and effective July 20, 2023 (“Amended and Restated Development Agreement”), between City and Owner, Owner is required to design and construct various Public Use Facilities as a condition to the development of The Preserve community, as specified in Section 6.4.4 of the Amended and Restated Development Agreement.

B. The Preserve Facilities are eligible for reimbursement to Owner by the City and Future Credits against PUFDs per the Chino Municipal Code, Chapters 3.45 titled “Preserve Development Impact Fees” (the “DIF Ordinance”) and, specifically, Section 3.45.130 thereof.

C. The DIF Ordinance provides that if, as a condition of approval of a development project, Owner constructs a public facility identified in the Nexus Reports, for which a DIF is imposed, Owner 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. Owner, as required by the Amended and Restated Development Agreement, is conditioned to cause to be built the Remaining Preserve Facilities as part of the development of the remainder of Owner’s Property within the Preserve and such requirement shall be satisfied upon Owner’s construction thereof.

D. City and Owner desire to enter into this Agreement (i) to facilitate the terms and provisions of Section 6.4.4 of the Amended and Restated Development Agreement, (ii) to expressly approve and accommodate Owner’s Future Credits against PUFDs and reimbursement 01225.0068 2159212.9 2
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to Owner by the City of the Actual Costs of the Remaining Facilities for which Future Credits are not allocated, (iii) to provide the methodology for the City’s future reimbursement to Owner and applying Future Credits to PUFDs so as to be consistent with Section 6.4.4 of the Amended and Restated Development Agreement and (iv) to establish the requirements for Owner’s transfer or application of all or any portion of available Credits to a third party.

E. Owner and City also desire to memorialize Owner's eligibility for reimbursement from the Public Use Facilities DIF Fund for eligible Public Use Facility improvements, subject to the terms and conditions of this Agreement, the availability of Public Use Facilities DIF revenues, and the City's authority to prioritize reimbursements and funding allocations, unless the City Council specifies otherwise.

NOW, THEREFORE, for the purposes set forth herein, Owner 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. Remaining Preserve Facilities. As set forth in the Amended and Restated Development Agreement, Owner shall cause the construction of the Remaining Preserve Facilities to be commenced by December 20, 2026, or as soon thereafter as is commercially feasible, but in no event later than one hundred and eighty (180) days following full execution of this Agreement, and shall be completed no later than eighteen (18) months thereafter or by June 20, 2028 (whichever is later), and City shall be responsible for accepting, maintaining, and operating the Remaining Preserve Facilities. Due to the nature of the Preserve Amenities, the City reserves the right to allow credit towards the Remaining Preserve Facilities for exterior amenities. For example, if a multi-use promenade or paseo was included adjacent to the Community Center, the City, at its option, could give credit for exterior amenities from the Miscellaneous Residential Amenities DIF Fee for the Community Core Commons. Except as contained in the Amended and Restated Development Agreement, Owner shall have no other obligation to construct Public Use Facilities or pay PUFDs.

2.1 Total Budget Costs. The Parties anticipate that the costs of the Remaining Preserve Facilities, as defined in the Amended and Restated Development Agreement, shall be approximately Fifty-One Million Three Hundred Sixty-Five Thousand Eight Hundred ThirtyThree and 50/100 Dollars ($51,365,833.50), as shown on Exhibit E (the “Budget”), which includes a Program Management Fee, design, rough and precise grading and all construction costs, including, furniture, fixtures, equipment and required public infrastructure as well as a ten percent (10%) contingency on all costs except the Land Value, which is not included in the Budget. Soft Costs shall not include accounting, financing costs, interest, bond issuance costs, developer overhead, general corporate administrative expenses, marketing, or any other indirect costs. (“Soft Costs”). The specific improvements identified in the attached Exhibit C as “Audio Visual Requirements and Estimate,” attached Exhibit D as “Camera requirements and Estimate, and attached Exhibit F as "PA System Requirements and Estimate” are included in the Budget. Together, the Budget plus Land Value ($3,911,313.72), which totals Fifty- 01225.0068 2159212.9 3
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Five Million, Two Hundred Seventy-Seven Thousand, One Hundred Forty-Seven and 22/100 Dollars ($55,277,147.22) shall constitute the total estimated costs of the Remaining Preserve Facilities (“Total Budget Costs”). Owner will reserve $1,120,004 of the Total Budget Costs for City to use to purchase and have installed the equipment specified in Exhibits C, D and F.

2.2 Program Management Fee. As set forth in the Amended and Restated Development Agreement, Owner shall be entitled to a Program Management Fee, which is being reduced under this Agreement to two and one-quarter percent (2.25%) of the Actual Costs, excluding the Land Value, for Owner’s program management of the design and construction of the Remaining Preserve Facilities by other contractors. The Program Management duties shall include those set forth on Exhibit A attached hereto, as applicable, and shall be exclusive of those duties performed by a construction manager and no administrative and program management credit shall be authorized for any duplicative activities performed by Owner and any construction manager. The Program Management Fee shall be included in the Cash Reimbursement.

2.3 Actual Costs. As set forth in the Amended and Restated Development Agreement, the Land Value, actual Program Management Fee, and actual construction management fees and all amounts paid by Owner for design (including all amounts advanced by Owner pursuant to Section 6.4.4(b) of the Amended and Restated Development Agreement), grading and construction costs as specified in Section 2.1 above) incurred by Owners for the construction of Remaining Preserve Facilities shall collectively be referred to herein as the “Actual Costs”. Owner shall not be required to post subdivision bonds or other security in connection with the development and construction of the Remaining Preserve Facilities but, in lieu thereof, Owner shall require the contractor or contractors constructing the Remaining Preserve Facilities to furnish performance, payment and labor and materials bonds, in forms and amounts acceptable to the City, guaranteeing the faithful performance and completion of such Prime Contractor's work and the payment of all laborers, subcontractors, and material suppliers, as applicable.

3. Preserve DIF Credit and Cash Reimbursement.

3.1 Public Use Facilities DIF Credits and CFD Proceeds. As set forth in the Amended and Restated Development Agreement, Owner shall be entitled to apply DIF Credits to all PUFDs with respect to future building permits for residences within all of the Owner’s Property in the Preserve pursuant to the provisions of Chapter 3.45 of the Chino Municipal Code.

3.2 Cash Reimbursement. As set forth in the Amended and Restated Development Agreement, notwithstanding the Total Budget Costs, the amount of the Cash Reimbursement payable by the City to Owner shall be the amount of the Actual Costs, including the Program Management Fee less Public Use Facilities DIF Credits applied to residences within Owner’s Property in the Preserve. The Cash Reimbursement shall be paid in five equal installments on an annual basis over the sixty (60) month period commencing the date a Notice of Completion has been recorded in the official records of the County of San Bernardino on the Remaining Preserve Facilities. The payment by the City to Owner of the Cash Reimbursement shall have priority and be first in line over all other Public Use Facilities DIF facilities. The failure of the City to pay to Owner the Cash Reimbursement in a timely manner shall constitute a material default of this Agreement and any unpaid amounts shall bear interest at the Default Rate.

4. Commencement and Final Acceptance of Works of Improvement. Owner shall 01225.0068 2159212.9 4
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initiate construction of the Remaining Preserve Facilities within one hundred eighty (180) days after the date that City has delivered to Owner a Notice to Proceed. In order to initiate said work, Owner will be hiring multiple prime contractors who will be performing the construction, as it is known amongst the parties that Owner is not a licensed contractor in California and thus will be fully and completely delegating all construction to licensed contractors that it hires to act as the prime contractor to perform specific scopes in construction of the Remaining Preserve Facilities (the “Prime Contractors”). Owner will also hire a construction manager to manage the work of the Prime Contractors. Thus, it is understood among the parties that for the construction of the Remaining Preserve Facilities, Owner will act as an Owner and in no way will be acting as a general contractor, licensed contractor, or assuming the responsibilities of a contractor. The bid/contract documents shall obligate prime contractors to provide assurance in the form of a payment and performance bond to assure that all warranty work will be completed for at least a period of one year after completion of the building.

After the Prime Contractors have completed all of the Remaining Preserve Facilities, Owner shall then request a final inspection of the work from the City and the Chino Valley Fire District (Fire District). If items are found by the City or the Fire District’s inspectors to be incomplete or non-compliant with this Agreement or any of the requirements contained or referenced herein, the City or Fire District staff will generate within fourteen (14) business days a written correction notice indicating the deficiencies that need to be completed or corrected for the issuance of a Certificate of Occupancy. Owner shall cause Prime Contractors to thereafter correct the identified deficiencies expeditiously and without delay. After the Prime Contractors have completed all the corrections, they will request a reinspection. Upon reinspection, if the City and/or Fire District finds that all corrections have been completed, they will indicate their approval on the Building Permit Job Card. Once the Job Card has been signed by all appropriate departments, a Certificate of Occupancy will be issued which shall certify completion and final acceptance (“Final Acceptance”) of the Remaining Preserve Facilities by the City. Owner shall file and record a Notice of Completion for the Remaining Preserve Facilities. Final Acceptance shall not constitute a waiver by the City against the Prime Contractors with respect to any defective work subsequently discovered, it being understood that the City’s recourse for all damages arising out of construction of the Remaining Preserve Facilities shall be against the Prime Contractors and their insurance, alone, and not against Owner, as all contractual rights and responsibilities of the Owner as to the Prime Contractors shall be assigned to the City, as further enumerated in the Release and Indemnity in section 4.1, below. Upon the City’s: (1) Final Acceptance, (2) releasing the Owner from liability as noted in section 4.1, below, and (3) Owner assigning all rights and responsibilities it had with regard to the Prime Contractors as noted in section 4.1, below, the Owner shall convey the Remaining Preserve Facilities to the City and the City can thereafter take possession. The City cannot take possession prior to these three conditions precedent being met.

Final Acceptance shall not constitute a waiver of any warranty, guaranty, bond claim, latent defect claim, or any other right or remedy available to the City under this Agreement or applicable law. Following the assignment described above, the City shall pursue construction-related warranty and defect claims directly against the applicable Prime Contractors, sureties, insurers, manufacturers, suppliers, and warranty providers.

4.1 Release and Indemnity. Pursuant to Section 6.4.4(f)(ii) of the Amended and Restated Development Agreement, City is responsible for accepting, maintaining, and 01225.0068 2159212.9 5
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operating the Remaining Preserve Facilities upon meeting the three conditions precedent outlined in the section above. To meet these conditions precedent, upon issuance of a Certificate of Occupancy and prior to any occupancy or use of the Remaining Preserve Facilities, to the fullest extent permitted by law, the City shall release and thereafter indemnify, defend (with counsel selected by Owner) and hold Owner, its affiliated entities and their respective officers, members, shareholders, employees, representatives, agents and insurers (collectively, “Indemnitees”) harmless from and against any claims, liability, loss, damage, costs and expenses, including reasonable attorneys' fees, expert witness fees, and court costs (“Claims”) arising directly or indirectly, in whole or in part, from and/or out of the construction of the Remaining Preserve Facilities, including but not limited to the actions and/or inactions of the Prime Contractors. The City’s obligation to defend Indemnitees is separate and independent of City’s indemnity obligations, and is triggered by the assertion of any Claim, and shall apply prior to and regardless of whether or not the issue of City’s indemnity obligation has been determined. In consideration of such release and indemnity by the City, Owner shall assign to City all of Owner’s rights and remedies against the Prime Contractors and their insurance in connection with the Remaining Preserve Facilities and all prime contracts executed in construction of same, except for indemnification rights, which shall survive assignment such that the Prime Contractors shall still be required to indemnify Owner, in addition to the City, to the fullest extent legally allowed, even after any assignments under this paragraph occur. Notwithstanding the foregoing, during all warranty periods, Owner shall be primarily responsible for pursuing any and all warranty claims on behalf of the City. The indemnification in this section takes precedence over, overrides and supersedes any prior indemnification between the parties with conflicting language. Without limiting the foregoing, this Section 4.1 shall also expressly operate to amend any terms and conditions in the Amended and Restated Development Agreement, including, without limitation, Sections 9.4.1 and 10.1, which are inconsistent with the terms of this Section 4.1, such that Owner shall have no obligation under the Amended and Restated Development Agreement to indemnify, defend or hold harmless the City for any claims related to the Remaining Preserve Facilities after Final Acceptance by the City of the Remaining Preserve Facilities.

5. Master Site Approval PL 20-0014 and Tentative Tract Maps 16420-4 and 20380. Among other conditions, the City conditioned Master Site Approval PL 20-0014 and Tentative Tract Maps 16420-4 and 20380 on the following:
o The design of the park in Block 9 (“Block 9 Park”) must be approved prior to the first Certificate of Occupancy being issued for project area within Tentative Tract Maps 16420-4 (condition 6.7 PL 20-0014) and 20380. o The Block 9 Park must be completed prior to the last Certificate of Occupancy being issued for units within boundaries of Tentative Tract Maps 16420-4 (condition 6.8 PL 20-0014) and 20380.
o The Art Walk adjacent to Main Street must be completed prior to the last Certificate of Occupancy being issued for units within the boundaries of project area Tentative Tract Maps 16420-4 (condition 6.9 PL 20-0014) and 20380.

City and Owner acknowledge and agree that because the design and construction of the Block 9 Park is dependent on the design of the Remaining Preserve Facilities, as of June 30, 2025, through no fault of the Parties, there has been a delay of thirty (30) months in connection with the 01225.0068 2159212.9 6
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design of the Block 9 Park. Therefore, the City has extended the timing of the above conditions on Master Site Approval PL 20-0014 and Tentative Tract Maps 16420-4 and 20380 for the period of such delay.

6. Insurance. Owner or its contractor(s) for the full term of this Agreement and any extensions thereto, shall obtain and maintain all of the following minimum insurance requirements in a form approved by the City’s authorized designee for Risk Management prior to commencing any work:
(a) Commercial General Liability policy with a minimum $1 million combined single limit for bodily injury and property damage providing all of the following coverages with deductibles not to exceed One Hundred Thousand Dollars ($100,000):
(i) Premises operations; including X, C, and U coverage; (ii) Owners’ and contractors’ protection;
(iii) Blanket contractual;
(iv) Completed operations; and
(v) Products.
(b) Commercial Business Auto policy with a minimum $1 million combined single limit for bodily injury and property damage, providing all of the following coverages with deductibles not to exceed One Hundred Thousand Dollars ($100,000):
(i) Coverage shall apply to any and all leased, owned, hired, or nonowned vehicles used in pursuit of any of the activities associated with this Agreement; and (ii) Any and all mobile equipment including cranes which are not covered under the above Commercial Business Auto policy shall have said coverage provided under the Commercial General Liability policy.
(c) Workers Compensation and Employers’ Liability policy in accordance with the laws of the State of California and providing coverage for any and all employees of the Owner:
(i) This policy shall provide coverage for Workers’ Compensation (Coverage A); and
(i) This policy shall provide coverage for $1,000,000 Employers’ Liability (Coverage B).
(ii) Pursuant to Labor Code section 1861, Owner’s contractor(s) shall certify as follows: “I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers’ Compensation or to undertake selfinsurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract.” 01225.0068 2159212.9 7
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(iii) Prior to commencement of work, the Owner’s contractor(s) shall file with the City’s Risk Manager a Certificate of Insurance or certification of permission to self-insure workers’ compensation conforming to the requirements of the Labor Code. (d) Endorsements. All of the following endorsements are required to be made a part of each of the above-required policies as stipulated below:
(i) “The City of Chino, its officers, employees and agents are hereby added as additional insureds.”
(ii) “This policy shall be considered primary insurance with respect to any other valid and collectible insurance the City may possess, including any self- insured retention the City may have and any other insurance the City does possess shall be considered excess insurance only.”
(iii) “This insurance shall act for each insured and additional insured as though a separate policy has been written for each. This, however, will not act to increase the limit of the insuring company.”
(iv) “Thirty (30) days prior written notice of cancellation shall be given to the City of Chino in the event of cancellation and/or reduction in coverage, except that ten (10) days prior written notice shall apply in the event of cancellation for non-payment of premium.” Such notice shall be sent to the Risk Manager at the address indicated in Subsection f below. (v) Subsection d(iv) hereinabove “Cancellation Notice” is the only endorsement required of the Workers’ Compensation and Employers’ Liability policy. (e) Proof of Coverage. Copies of all required endorsements shall be attached to the Certificate of Insurance which shall be provided by the Owner’s insurance company as evidence of the coverage required herein and shall be mailed to:

City of Chino
Risk Management
13220 Central Avenue
Chino, CA 91710

7. Annual Reconciliation. On the first business day following each July 1 st
,
commencing on July 1, of the year after completion of the Remaining Preserve Facilities, City and Owner representatives shall meet for the purpose of ascertaining (i) the amount funded by Owner for the Remaining Preserve Facilities in the prior year, (ii) the amount of Future Credits to PUFDs used by Owner toward any project within the Preserve within the prior year, (iii) the amount of any reimbursements made to Owner, and (iv) the remaining amount of the Cash Reimbursement. City and Owner shall prepare a document that reconciles the foregoing, which document shall be approved by the City Council. When approved by the City Council said reconciliation document shall constitute a revision to and update of the Cash Reimbursement Amount and it shall be binding on the Parties. 01225.0068 2159212.9 8
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8. DIF Addendum. Owner shall have the right to assign all or portions of Owner’s rights to Future Credits hereunder in accordance with the requirements specified in the DIF Credit Addendum attached hereto as Exhibit B, which assignment will require City’s written acknowledgement. Owner understands that strict compliance with the assignment restrictions is critical to allow City to track the total amount of Future Credits applied and remaining and Owner’s failure to comply with the assignment requirements in the DIF Credit Addendum may result in delays in the processing of Future Credit assignments by the City.

9. Assignment. Owner may assign this Agreement to a third party subject to the approval of City’s Director of Development Services, which shall not be unreasonably withheld. If Owner desires to assign this Agreement, Owner shall provide detailed information as to the proposed assignee as requested by City.

10. Amendment of Amended and Restated Development Agreement. The Parties agree that the purpose of this Agreement is to facilitate Section 6.4.4 of the Amended and Restated Development Agreement and; provided that the Parties shall meet in good faith to prepare and approve an amendment to the Amended and Restated Development Agreement to incorporate provisions of this Agreement that are intended to modify the terms of the Amended and Restated Development Agreement.

11. Miscellaneous.

11.1 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 Owner. Owner’s contractors are exclusively and solely under the control and dominion of Owner. Nothing herein shall be deemed to make Owner or its contractors an agent or contractor of City.

11.2 Authority to Enter Agreement. Each person executing this Agreement on behalf of Owner represents and warrants that he or she has the legal power, right and authority to execute this Agreement on behalf of Owner and that this Agreement is binding upon Owner.

11.3 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:
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To City:

With Copy to:

To Owner:

With a copy to:

City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: Swati Meshram
Director of Development Services Email:
[email protected]
Aleshire & Wynder, LLP
188881 Von Karman Ave., Suite 1700
Irvine, CA 92612
Attn: Fred Galante, Esq.

Email: [email protected]
Chino Preserve Development Corporation
1156 North Mountain Avenue
Upland, CA 91786
Attn: Mr. Bryan T. Goodman
Email: [email protected]
Procopio, Cory Hargreaves & Savitch
LLP
200 Spectrum Center Drive, Suite 1650
Irvine, CA 92618
Attn: James Vaughn, Esq
Email: [email protected]

11.4 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.

11.5 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and executed by both Parties.

11.6 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.

11.7 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.

11.8 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

11.9 Invalidity; Severability. If any portion of this Agreement is declared 01225.0068 2159212.9 10
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invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

11.10 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.

11.11 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.

11.12 City Officers and Employees. No officer or employee of City shall be personally liable to Owner or any successors in interest in the event of any default or breach by City or for any amount that may become due to Owner or any successor(s) in interest or for breach of any obligation of the terms of this Agreement. No officer or employee of Owner shall be personally liable to City or any successor(s) in interest in the event of any default or breach by Owner 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.

11.13 Entire Agreement. This Agreement contains the entire agreement between City and Owner and supersede any prior oral or written statements or agreements between City and Owner with respect to the Preserve Facilities and the Remaining Preserve Facilities and the credit and reimbursement provisions herein.

11.14 Exhibits. The following exhibits are attached hereto and incorporated herein by reference:

Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Description of Additional Improvements
DIF Credit Addendum
Audio Visual Requirements and Estimate
Camera Requirements and Estimate
Community Center DIF Credit Reconciliation
PA System Requirements and Estimate
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
“OWNER”

CHINO DEVELOPMENT

CORPORATION,
a California corporation
By:

Name: Bryan T. Goodman
Its: Authorized Agent

CHINO PRESERVE

DEVELOPMENT CORPORATION,
a California corporation
By:

Name: Bryan T. Goodman
Its: Authorized Agent

CHINO HOLDING COMPANY, LLC,
a Delaware limited liability
company qualified to do business
in California (“CHC”),
By: NORTH MOUNTAIN

CORPORATION
a California corporation - Its Sole
Manager
By:____________________________
Name:__________________________
Its:_____________________________
“CITY”

CITY OF CHINO,
a municipal corporation
By:

Linda Reich
City Manager
ATTEST:
____________________________
Natalie Gonzaga, City Clerk
APPROVED AS TO CONTENT:
_____________________________
Swati Meshram, Director of Development
Services

APPROVED AS TO FORM

ALESHIRE & WYNDER, LLP
By:___________________________
Fred Galante, City Attorney
OWNER: ONE PERSON AUTHORIZED BY THE APPLICABLE ENTITY
FORMATION DOCUMENTS SHALL EXECUTE THIS AGREEMENT. COPIES

OF APPLICABLE DOCUMENTS EVIDENCING SUCH AUTHORITY SHALL BE PROVIDED TO CITY. OWNER’S SIGNATURE SHALL BE DULY NOTARIZED,

AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE

REQUIRED BY THE APPLICABLE FORMATION DOCUMENTS FOR THE
ENTITY.
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Exhibit A
Owner Duties to Earn Program
Management Fee
Owner duties to earn program management fee referenced in the Amended and Restated Development Agreement include:

1. Hire an architect and other consultants as needed for design of Community Center Facility.

2. Participate, if needed, in community outreach/workshops during design development of the Facility.

3. Hold meetings with City and architect for conceptual design and design development of the Facility.

4. Work with architect and City to prepare final working drawings and submit plans to City for plan check, including payment of plan check fees.

5. Process plans through City to complete plan check with building plans approval and building permit.

6. Hire and supervise civil engineer, landscape architect, utility consultant and other consultants as needed for the project.

7. Already Completed: Supervise preparation of engineering grading plans, process through City approval, bid and supervise construction of graded pad ready for facility construction. Completed as of June 30, 2023.

8. Supervise preparation of engineering plans and submittal to the City through approval.

9. Already Completed: Hire a consultant to manage bidding, and construction, and future CFD reimbursement of surrounding infrastructure including Sewer, Water, Reclaimed Water, Storm Drain, utilities for electric, gas, telephone and cable tv and public streets, through to final acceptance and bond release.

10. Supervise preparation of landscape plans, and submittal to City for approval and construction permit. Owner shall hire a construction manager to manage bidding and construction of landscaping, through to final acceptance and bond release (“Construction Manager”).

11. Owner shall hire contractors to construct the Facility. Owner shall not be the prime contractor for the construction of the Facility.

12. Owner shall hire a Construction Manager to assist in obtaining permits, utility meters or other items to facilitate constructionof the Facility.

13. Supervise the Construction Manager, who will act as Owner’s representative in the Public Bid/Contracting process, and the CFD Consultant to ensure CFD compliance.

14. Prepare, update and manage Facility budget.

15. Prepare and manage Facility design, approval and construction schedule.

16. Pay invoices and perform Facility accounting including compilation of DIF Package for Actual Costs approval.

17. Hire, supervise and pay Construction Manager.
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18. Hire a Construction Manager to oversee weekly meetings during construction, acting as the Owner’s representative during construction.

19. Work with architect and Construction Manager to appropriately delegate responsibility to answer Requests For Information, Change Order requests and other project questions received from the Prime Contractors.

20. Hire a Construction Manager to coordinate onsite construction work with offsite construction work to complete project.

21. Coordinate Construction Manager hiring, supervision, payment and division of responsibilities to insure no duplication with Program Manager. 01225.0068 2159212.9

EXHIBIT B

DIF CREDIT ADDENDUM
Reimbursements $_____________.00
Prior Credits $_____________.00
Subtotal $_____________.00
Assigned Credits $<<>>
Credit Balance Forward $<<>>

CHINO DEVELOPMENT CORPORATION/CHINO PRESERVE DEVELOPMENT CORPORATION is hereby transferring credits in in the amount of $<<>> to:
❖ Assignee:

Attn:
❖ Credit Transfer Amount: $
❖ Remaining Credit: $
“Any transfer or assignment of credits or reimbursement rights acknowledged in this Addendum shall be made in accordance with City procedures, on a form approved by and acknowledged by the City. All parties to this Addendum agree that City will have no obligation to recognize or honor an assignment or transfer that does not comply with the terms of this Addendum.” [SIGNATURES ON FOLLOWING
PAGE]
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EXHIBIT C
Audio Visual Requirements and Estimate
(See attached)
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Contract No.: ____________________
Approval Date: ___________________

CONSTRUCTION CREDIT AND REIMBURSEMENT AGREEMENT

THE PRESERVE

to Owner by the City of the Actual Costs of the Remaining Facilities for which Future Credits are not allocated, (iii) to provide the methodology for the City’s future reimbursement to Owner and applying Future Credits to PUFDs so as to be consistent with Section 6.4.4 of the Amended and Restated Development Agreement and (iv) to establish the requirements for Owner’s transfer or application of all or any portion of available Credits to a third party.

NOW, THEREFORE, for the purposes set forth herein, Owner 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. Remaining Preserve Facilities. As set forth in the Amended and Restated Development Agreement, Owner shall cause the construction of the Remaining Preserve Facilities to be commenced by December 20, 2026 and completed no later than eighteen (18) months thereafter or by June 20, 2028 and City shall be responsible for accepting, maintaining, and operating the Remaining Preserve Facilities. Due to the nature of the Preserve Amenities, the City reserves the right to allow credit towards the Remaining Preserve Facilities for exterior amenities.

For example, if a multi-use promenade or paseo was included adjacent to the Community Center, the City, at its option, could give credit for exterior amenities from the Miscellaneous Residential Amenities DIF Fee for the Community Core Commons. Except as contained in the Amended and Restated Development Agreement, Owner shall have no other obligation to construct Public Use Facilities or pay PUFDs.

2.1 Total Budget Costs. The Parties anticipate that the costs of the Remaining Preserve Facilities, as defined in the Amended and Restated Development Agreement, shall be approximately Fifty-One Million Three Hundred Sixty-Five Thousand Eight Hundred ThirtyThree and 50/100 Dollars ($51,365,833.50) (i.e., $1,211.60 per square foot x 42,395 square feet = $51,365,833.50), as shown on Exhibit E, which includes a Program Management Fee,design, rough and precise grading and all construction costs, including, soft costs comprising of project management, construction management, architectural and engineering services,surveying, geotechnical services, plan check and permitting fees, inspection and testing,utility coordination, record drawings, and project closeout, furniture, fixtures, equipment and required public infrastructure as well as a ten percent (10%) contingency on all costs except the Land Value, which is not included in the Budget. Soft Costs shall not include accounting,financing costs, interest, bond issuance costs, developer overhead, general corporate administrative expenses, marketing, or any other indirect costs. (“Soft Costs”). The specific improvements identified in the attached Exhibit C as “Audio Visual Requirements and Estimate,” attached Exhibit D as “Camera requirements and Estimate, and attached Exhibit F
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as "PA System Requirements and Estimate” are included in the Budget. Together, the Budget plus Land Value ($3,911,313.72), which totals Fifty-Five Million, Two Hundred SeventySeven Thousand, One Hundred Forty-Seven and 22/100 Dollars ($55,277,147.22) shall constitute the total estimated costs of the Remaining Preserve Facilities (“Total Budget Costs”). Owner will reserve $1,120,004 of the Total Budget Costs for City to use to purchase and have installed the equipment specified in Exhibits C, D, E.

2.3 Actual Costs. As set forth in the Amended and Restated Development Agreement, the Land Value, actual Program Management Fee, and actual construction management fees and all amounts paid by Owner for design (including all amounts advanced by Owner pursuant to Section 6.4.4(b) of the Amended and Restated Development Agreement), grading and construction costs (as specified in Section 2.1 above) incurred by Owners for the construction of Remaining Preserve Facilities shall collectively be referred to herein as the “Actual Costs”. Owner shall not be required to post subdivision bonds or other security in connection with the development and construction of the Remaining Preserve Facilities but, in lieu thereof, Owner shall require the contractor or contractors constructing the Remaining Preserve Facilities to furnish performance, payment and labor and materials bonds, in forms and amounts acceptable to the City, guaranteeing the faithful performance and completion of such Prime Contractor's work and the payment of all laborers, subcontractors, and material suppliers, as applicable.

3. Preserve DIF Credit and Cash Reimbursement.

3.1 Public Use Facilities DIF Credits and CFD Proceeds. As set forth in the Amended and Restated Development Agreement, Owner shall be entitled to apply Future DIF Credits to all PUFDs with respect to future building permits for residences within all of the Owner’s Property in the Preserve issued after May 31, 2025, based on the provisions of Chapter

3.45 of the Chino Municipal Code.

3.2 Cash Reimbursement. As set forth in the Amended and Restated Development Agreement, notwithstanding the Total Budget Costs, the amount of the Cash Reimbursement payable by the City to Owner shall be the amount of the Actual Costs, including the Program Management Fee less Public Use Facilities DIF Credits applied to residences within Owner’s Property in the Preserve. The Cash Reimbursement shall be paid in five equal installments on an annual basis over the sixty (60) month period commencing the date a Notice of Completion has been recorded in the official records of the County of San Bernardino on the Remaining Preserve Facilities. The payment by the City to Owner of the Cash Reimbursement shall have priority and be first in line over all other Public Use Facilities DIF facilities. The failure of the City to pay to Owner the Cash Reimbursement in a timely manner shall constitute a material default of 01225.0068 2159212.8 4
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this Agreement and any unpaid amounts shall bear interest at the Default Rate.

4. Commencement and Final Acceptance of Works of Improvement. Owner shall initiate construction of the Remaining Preserve Facilities within one hundred eighty (180) days after the date that City has delivered to Owner a Notice to Proceed. In order to initiate said work, Owner will be hiring multiple prime contractors who will be performing the construction, as it is known amongst the parties that Owner is not a licensed contractor in California and thus will be fully and completely delegating all construction to licensed contractors that it hires to act as the prime contractor to perform specific scopes in construction of the Remaining Preserve Facilities (the “Prime Contractors”). Owner will also hire a construction manager to manage the work of the Prime Contractors. Thus, it is understood among the parties that for the construction of the Remaining Preserve Facilities, Owner will act as an Owner and in no way will be acting as a general contractor, licensed contractor, or assuming the responsibilities of a contractor. The bid/contract documents shall obligate prime contractors to provide assurance in the form of a payment and performance bond to assure that all warranty work will be completed for at least a period of one year after completion of the building.

4.1 Release and Indemnity. Pursuant to Section 6.4.4(f)(ii) of the Amended and Restated Development Agreement, City is responsible for accepting, maintaining, and operating the Remaining Preserve Facilities upon meeting the three conditions precedent outlined in the section above. To meet these conditions precedent, upon issuance of a Certificate of Occupancy and prior to any occupancy or use of the Remaining Preserve Facilities, to the fullest extent permitted by law, the City shall release and thereafter indemnify, defend (with counsel selected by Owner) and hold Owner, its affiliated entities and their respective officers, members, shareholders, employees, representatives, agents and insurers (collectively, “Indemnitees”) harmless from and against any claims, liability, loss, damage, costs and expenses, including reasonable attorneys' fees, expert witness fees, and court costs (“Claims”) arising directly or indirectly, in whole or in part, from and/or out of the construction of the Remaining Preserve Facilities, including but not limited to the actions and/or inactions of the Prime Contractors. The City’s obligation to defend Indemnitees is separate and independent of City’s indemnity obligations, and is triggered by the assertion of any Claim, and shall apply prior to and regardless of whether or not the issue of City’s indemnity obligation has been determined. In consideration of such release and indemnity by the City, Owner shall assign to City all of Owner’s rights and remedies against the Prime Contractors and their insurance in connection with the Remaining Preserve Facilities and all prime contracts executed in construction of same, except for indemnification rights, which shall survive assignment such that the Prime Contractors shall still be required to indemnify Owner, in addition to the City, to the fullest extent legally allowed, even after any assignments under this paragraph occur. Notwithstanding the foregoing, during all warranty periods, Owner shall be primarily responsible for pursuing any and all warranty claims on behalf of the City. The indemnification in this section takes precedence over, overrides and supersedes any prior indemnification between the parties with conflicting language. Without limiting the foregoing, this Section 4.1 shall also expressly operate to amend any terms and conditions in the Amended and Restated Development Agreement, including, without limitation, Sections 9.4.1 and 10.1, which are inconsistent with the terms of this Section 4.1, such that Owner shall have no obligation under the Amended and Restated Development Agreement to indemnify, defend or hold harmless the City for any claims related to the Remaining Preserve Facilities after Final Acceptance by the City of the Remaining Preserve Facilities.

City and Owner acknowledge and agree that because the design and construction of the 01225.0068 2159212.8 6
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Block 9 Park is dependent on the design of the Remaining Preserve Facilities, as of June 30, 2025, through no fault of the Parties, there has been a delay of thirty (30) months in connection with the design of the Block 9 Park. Therefore, the City has extended the timing of the above conditions on Master Site Approval PL 20-0014 and Tentative Tract Maps 16420-4 and 20380 for the period of such delay.

6. Insurance. Owner or its contractor(s) for the full term of this Agreement and any extensions thereto, shall obtain and maintain all of the following minimum insurance requirements in a form approved by the City’s authorized designee for Risk Management prior to commencing any work:
(a) Commercial General Liability policy with a minimum $1 million combined single limit for bodily injury and property damage providing all of the following coverages with deductibles not to exceed One Hundred Thousand Dollars ($100,000):
(i) Premises operations; including X, C, and U coverage; (ii) Owners’ and contractors’ protection;
(iii) Blanket contractual;
(iv) Completed operations; and
(v) Products.
(b) Commercial Business Auto policy with a minimum $1 million combined single limit for bodily injury and property damage, providing all of the following coverages with deductibles not to exceed One Hundred Thousand Dollars ($100,000):
(i) Coverage shall apply to any and all leased, owned, hired, or nonowned vehicles used in pursuit of any of the activities associated with this Agreement; and (ii) Any and all mobile equipment including cranes which are not covered under the above Commercial Business Auto policy shall have said coverage provided under the Commercial General Liability policy.
(c) Workers Compensation and Employers’ Liability policy in accordance with the laws of the State of California and providing coverage for any and all employees of the Owner:
(i) This policy shall provide coverage for Workers’ Compensation (Coverage A); and
(i) This policy shall provide coverage for $1,000,000 Employers’ Liability (Coverage B).
(ii) Pursuant to Labor Code section 1861, Owner’s contractor(s) shall certify as follows: “I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers’ Compensation or to undertake self- 01225.0068 2159212.8 7
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insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract.” (iii) Prior to commencement of work, the Owner’s contractor(s) shall file with the City’s Risk Manager a Certificate of Insurance or certification of permission to self-insure workers’ compensation conforming to the requirements of the Labor Code. (d) Endorsements. All of the following endorsements are required to be made a part of each of the above-required policies as stipulated below:
(i) “The City of Chino, its officers, employees and agents are hereby added as additional insureds.”
(ii) “This policy shall be considered primary insurance with respect to any other valid and collectible insurance the City may possess, including any self- insured retention the City may have and any other insurance the City does possess shall be considered excess insurance only.”
(iii) “This insurance shall act for each insured and additional insured as though a separate policy has been written for each. This, however, will not act to increase the limit of the insuring company.”
(iv) “Thirty (30) days prior written notice of cancellation shall be given to the City of Chino in the event of cancellation and/or reduction in coverage, except that ten (10) days prior written notice shall apply in the event of cancellation for non-payment of premium.” Such notice shall be sent to the Risk Manager at the address indicated in Subsection f below. (v) Subsection d(iv) hereinabove “Cancellation Notice” is the only endorsement required of the Workers’ Compensation and Employers’ Liability policy. (e) Proof of Coverage. Copies of all required endorsements shall be attached to the Certificate of Insurance which shall be provided by the Owner’s insurance company as evidence of the coverage required herein and shall be mailed to:

City of Chino
Risk Management
13220 Central Avenue
Chino, CA 91710

7. Annual Reconciliation. On the first business day following each July 1 st
,
commencing on July 1, of the year after completion of the Remaining Preserve Facilities, City and Owner representatives shall meet for the purpose of ascertaining (i) the amount funded by Owner for the Remaining Preserve Facilities in the prior year, (ii) the amount of Future Credits to PUFDs used by Owner toward any project within the Preserve within the prior year, (iii) the amount of any reimbursements made to Owner, and (iv) the remaining amount of the Cash Reimbursement. City and Owner shall prepare a document that reconciles the foregoing, which document shall be approved by the City Council. When approved by the City Council said reconciliation document shall constitute a revision to and 01225.0068 2159212.8 8
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update of the Cash Reimbursement Amount and it shall be binding on the Parties.

10. Amendment of Amended and Restated Development Agreement. The Parties agree that the purpose of this Agreement is to facilitate Section 6.4.4 of the Amended and Restated Development Agreement and; provided that the Parties shall meet in good faith to prepare and approve an amendment to the Amended and Restated Development Agreement to incorporate provisions of this Agreement that are inconsistent with the terms of the Amended and Restated Development Agreement.

11. Miscellaneous.

With Copy to:

To Owner:

With a copy to:

Email: [email protected]
Chino Preserve Development Corporation
1156 North Mountain Avenue
Upland, CA 91786
Attn: Mr. Bryan T. Goodman
Email: [email protected]
Procopio, Cory Hargeaves & Savitch
LLP
200 Spectrum Center Drive, Suite 1650
Irvine, CA 92618
Attn: James Vaughn, Esq
Email: [email protected]

11.5 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and executed by both Parties.

11.8 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

11.9 Invalidity; Severability. If any portion of this Agreement is declared 01225.0068 2159212.8 10
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invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

11.10 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.

11.11 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.

11.14 Exhibits. The following exhibits are attached hereto and incorporated herein by reference:

Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Description of Additional Improvements
DIF Credit Addendum
Audio Visual Requirements and Estimate
Camera Requirements and Estimate Total
Budgeted Costs Schedule
PA System Requirements and Estimate
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
“OWNER”

CHINO DEVELOPMENT

CORPORATION,
a California corporation
By:

Name: Bryan T. Goodman
Its: Authorized Agent

CHINO PRESERVE

DEVELOPMENT CORPORATION,
a California corporation
By:

Name: Bryan T. Goodman
Its: Authorized Agent

CHINO HOLDING COMPANY, LLC,
a Delaware limited liability
company qualified to do business
in California (“CHC”),
By: NORTH MOUNTAIN

CORPORATION
a California corporation - Its Sole
Manager
By:____________________________
Name:__________________________
Its:_____________________________
“CITY”

CITY OF CHINO,
a municipal corporation
By:

Linda Reich
City Manager
ATTEST:
____________________________
Natalie Gonzaga, City Clerk
APPROVED AS TO CONTENT:
_____________________________
Swati Meshram, Director of Development
Services

APPROVED AS TO FORM

ALESHIRE & WYNDER, LLP
By:___________________________
Fred Galante, City Attorney
OWNER: ONE PERSON AUTHORIZED BY THE APPLICABLE ENTITY
FORMATION DOCUMENTS SHALL EXECUTE THIS AGREEMENT. COPIES

OF APPLICABLE DOCUMENTS EVIDENCING SUCH AUTHORITY SHALL BE PROVIDED TO CITY. OWNER’S SIGNATURE SHALL BE DULY NOTARIZED,

AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE

REQUIRED BY THE APPLICABLE FORMATION DOCUMENTS FOR THE
ENTITY.
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Exhibit A
Owner Duties to Earn Program
Management Fee
Owner duties to earn program management fee referenced in the Amended and Restated Development Agreement include: