REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF FONTANA AND
IE CENTERFIELD LLC FOR THE SIERRA BASIN STORM DRAIN IMPROVEMENT
PLANS TO INSTALL A BASIN STORM DRAIN ON SIERRA AVENUE, BETWEEN
SANTA ANA AND JURUPA AVENUE
This Reimbursement Agreement (“Agreement”) is made and entered into as of the _____ day of __ 2024 by and between the City of Fontana, a California municipal corporation (“City”) and IE Centerfield, LLC, a California limited partnership (“IE”). City and IE may be individually referred to herein as “Party” or collectively referred to herein as the “Parties.”
RECITALS
WHEREAS, City is the owner of fee title to 4.72 acres of unimproved land comprised of Assessor Parcel Numbers 0255-101-22-0-000 and 0255-101-23-0-000, located on Sierra Avenue, between Santa Ana Avenue to the north and Jurupa Avenue to the south, in the City of Fontana (“Project Site”); and
WHEREAS, on December 2023, IE provided City with improvement plans to construct a basin storm drain at the Project Site (“Sierra Basin Storm Drain Improvement Plans”); and WHEREAS, on December 2023, the City approved the Sierra Basin Storm Drain Improvement Plans for construction at the Project Site; and
WHEREAS, on June 2024, City initiated construction of the of the basin storm drain at the Project Site utilizing the Sierra Basin Storm Drain Improvement Plans; and WHEREAS, City intends to reimburse IE for the Sierra Basin Storm Drain Improvement Plans in accordance with the terms and conditions outlined herein.
The Parties agree as follows:
AGREEMENT
1. Recitals. The Recitals are true, correct and incorporated into this Agreement by this reference.
2. Reimbursement Amount. According to current cost estimates, the reimbursement amount for the Sierra Basin Storm Drain Improvement Plans is two hundred and thirty- one thousand, seven hundred fifty-eight dollars and ten cents ($231,758.10) as demonstrated in Exhibit A, that is attached hereto and incorporated herein. In no event, will City be responsible for IE’s costs in excess of the estimate provided herein.
3. Payment. City agrees to reimburse IE in full satisfaction of, and IE shall forever assign all of its right, title and interest to the City in, the Sierra Basin Storm Drain Improvement Plans through a onetime payment in the amount of two hundred and thirty-one thousand, seven hundred fifty-eight dollars and ten cents ($231,758.10). City shall issue payment to IE no later than ninety (90) days following the date of final acceptance of the Agreement by IE.
4. Applicable laws. Parties agree to abide by all applicable federal, state and local laws and regulations pertaining to this Agreement.
5. Amendments. This Agreement can be amended only when agreed upon in writing by both Parties.
6. Waiver and Indemnity. IE hereby waives and releases any and all claims against the City related to its rights under this Agreement and agrees to defend, indemnify, and hold harmless City, its officers and employees, from and against any and all actions, claims, injuries, damages, liabilities, demands, losses, judgments, penalties, expenses and costs including attorney’s fees for staff attorneys and outside counsel (collectively “Liabilities”) arising out of or in any way connected with this Agreement, including its officers, employees, agents, contractors, consultants, subcontractors and sub consultants of any level.
7. Term. This Agreement will be considered terminated upon reimbursement of all eligible costs as defined herein with the exception of paragraph 6 above which shall survive termination of this Agreement.
8. Notice. Notice given under or regarding this Agreement shall be deemed given (a) upon actual delivery, if delivery is personally made; or (b) upon delivery into the United States Mail if delivery is by postage paid certified mail (return receipt requested), fax or private courier including overnight delivery services. Notice shall be sent to the respective Party at the address indicated below or to any other address as a Party may designate from time to time by a notice given in accordance with this paragraph.
If to City: Attn: Matthew Ballantyne, City Manager
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
If to IE: R. Stan Smith
3105 East Guasti Road
Suite 100
Ontario, CA 91761
9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action brought by any Party hereto shall be brought within the State of California, County of San Bernardino and both Parties waive any right to change venue, including under Code of Civil Procedure Section 394.
10. Assignment. Parties shall not assign their rights and obligations with respect to the Agreement. Any such attempted assignment without the consent of the non-assigning Party shall be null and void and of no force or effect.
11. Third Party Beneficiaries. There are no third party beneficiaries, and this Agreement is not intended, and shall not be construed to be for the benefit of, or be enforceable by, any other person or entity whatsoever.
12. Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties and there are no terms, covenants or conditions which exist other than those contained herein.
13. Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party’s right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter.
14. Survival. The provisions of paragraph 6 shall survive the termination of this Agreement.
15. Severability of Provisions. No provision of this Agreement that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of this Agreement are hereby declared to be severable.
16. Warranty Against Payment of Consideration. IE warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement.
17. Exhibits. All Exhibits attached and referred to in this Agreement are hereby incorporated herein as though fully set forth herein (and shall be deemed to be a part of this Agreement).
18. Headings. Headings are included in this Agreement for convenience of reference only and shall not be used in construing this Agreement.
19. Construction. The rule of strict construction does not apply to this Agreement. The language of this grant shall be construed simply, according to its fair meaning, so that the intention of the Parties is carried out.
20. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
21. Attorney’s Fees. If an action is commenced to enforce or interpret any provision of this Agreement, the non-prevailing Party shall be responsible for the prevailing Party’s attorney fees and costs incurred in the action.
22. Time of the Essence. Time is of the essence of this Agreement.
23. Authority to Execute. The individuals executing this Agreement referenced herein each represent and warrant that they have the legal power, right and actual authority to bind their respective Parties to the terms and conditions hereof and thereof. (Signature Provisions on Following Page)
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to execute this Agreement on the date and year first written above.
City of Fontana
By:______________________________________
Name: ___________________________________
Title:____________________________________
Attest:
_______________________________________ City of Fontana City Clerk APPROVED AS TO FORM :
By: ______________________________________________________ City Attorney IE Centerfield, LLC
By:____________________________________
Name:__________________________________
Title:__________________________________
Exhibit A