Rialto, California
Store No. 1862-03
CONSTRUCTION AND CREDIT AGREEMENT
DEVELOPMENT IMPACT FEE PROGRAM
This CONSTRUCTION AND CREDIT AGREEMENT ("Agreement") is entered into.
RECITALS
WHEREAS, the City and Developer entered into a Development Agreement dated.
August 12, 2008 and recorded with the San Bernardino County Office of the Recorder as.
Document No. 2008-0466782 in accordance with Section 65864 of the Government Code ("Development Agreement"), which pursuant to Section 10 of the Development Agreement, the Developer agreed to construct certain reimbursable offsite improvements as described in Exhibit F of the Development Agreement and
WHEREAS, the City granted Developer certain entitlements and/or permits, including Precise Plan of Design 2102R ("PPD"), to construct certain improvements, including an approximately 185,481 square foot retail building and certain off-site public improvements (the. "Project"), on an approximately 20.7 acre development parcel located at the southwest corner of Riverside Avenue and San Bernardino Avenue within the R-C (Retail Commercial) zone of the Gateway Specific Plan of the City of Rialto, as more particularly described in "A" ("Development Parcel"); and
WHEREAS, as a condition of approval of the Project, the City requires Developer to construct certain master planned improvements, including portions of Riverside Avenue, a public street within the City (the "Riverside Improvements"), and portions of San Bernardino Avenue, a public street within the City (the "San Bernardino Improvements"), which collectively may be referred to herein as the "Public Improvements" or "Improvements" as described in Exhibit "B" (such plans and specifications, with any changes approved by City and Developer, are collectively referred to herein as the "Plans and Specifications"); and WHEREAS, Chapter 3.33 of the Rialto Municipal Code establishes development impact fees and fair share fees ("DIF Fees") to finance public facilities in furtherance of the goals and objectives of the City's general plan, various facility master plans, capital improvement plans, and the nexus reports described in Section 3.33.030, as they may be amended from time to time, and to ensure that new development in the City bears its proportionate share of the cost of public facilities necessary to accommodate such development, which thereby promotes and protects the public health, safety, and welfare; and
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WHEREAS, as a condition of approval of the Project, and prior to the issuance of building permits, Developer has or will pay all DIF Fees required by the Development Agreement, including the DIF Fees specifically related to this Agreement as identified in Exhibit "C", that are in effect at the time building permits are obtained; and WHEREAS, Pursuant to Section 3.33.100 of the Rialto Municipal Code, Developer may be eligible to receive, and the City may grant, credit towards the DIF Fees for construction of eligible master planned public improvements or facilities in accordance with City policies and procedures; provided, however, the amount of the fee credit or reimbursement shall not exceed. the amount of the DIF Fees assessed for which the fee credit or reimbursement is granted, unless:
the City Council also approves a Reimbursement Agreement; and WHEREAS, City and Developer now desire to enter into this Agreement for the following purposes: (1) to provide for the timely construction and completion of the Public Improvements, (2) to ensure that construction of the Public Improvements is undertaken in accordance with the Plans and Specifications, and (3) to provide a means by which the Developer's costs for construction of the Public Improvements is partially or fully offset by Developer's obligation to pay the applicable DIF Fees for the Project.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable consideration, the adequacy of which is hereby acknowledged, Developer and City hereby agree as follows:
TERMS
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.
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. Developer (or its contractors) shall provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to fully and adequately complete the Public Improvements.
2.1 Pre-approval of Plans and Specifications. Developer is prohibited from commencing work on any portion of the Public Improvements until all Plans and Specifications for the Public Improvements have been submitted to and approved by the City Administrator, Public Works Director, City Engineer, or their designee, any of which may act individually on behalf of the City ("Approved by the City" or "City Approval"). City Approval shall not relieve Developer from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement.
2.2 Permits and Notices. Within one (1) year from the Effective Date of this Agreement, and prior to commencing any work on the Public Improvements, Developer (through its contractors) shall, at its sole cost and expense, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer shall complete all construction of the Public Improvements within one (1) year from the date the 2 Construction and Credit Agreement 004
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permits are obtained. Developer (through its contractors) shall conduct the work in full compliance with the regulations, rules, and other requirements contained in this Agreement, any applicable law, and any permit or license issued to Developer.
2.3 Public Works Requirements. Developer shall ensure that the construction of the Public Improvements is undertaken as if such Public Improvements were constructed under the direction and authority of City. Thus, without limitation, Developer shall comply, with the requirements in Exhibit "D" with respect to the construction of the Public Improvements:
(a) Developer will obtain bids for the construction of the Public Improvements in a manner which has been approved by the City. The contract or contracts for the construction of the Public Improvements will be awarded to the responsible bidders) submitting the lowest responsive bid(s) for the construction of the entire Project, which at Developer's option, may include other work for the Project. (b) Developer's General Contractor for the construction of the Public Improvements shall require that the General Contractor pay prevailing wages (in accordance with Articles 1 and 2 of Chapter 1, Part 7, Division 2 of the Labor Code) for the construction of the Public Improvements, and to otherwise comply with applicable provisions of the Labor Code, the Government Code, and the Public Contract Code relating to public works projects of cities/counties and as required by the procedures and standards of City with respect to the construction of its public works projects or as otherwise Approved by the City. Nothing contained herein shall require payment of prevailing wage for construction work other than the Public Improvements for which the Developer may receive and the City may grant credit towards the DIF Fees.
coverage throughout the trAl the cos shal e
construct in conformance with Section 13.0 of this Agreement.
2.4 Compliance With Plans and Specifications. The Public Improvements shall be completed in accordance with the Plans and Specifications as Approved by City.
2.5 Alterations to Public Improvements. All work shall be done and the Public Improvements completed as shown on the Plans and Specifications, and any subsequent alterations thereto mutually agreed upon by City and Developer. If Developer desires to make any alterations to the Plans and 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. 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.
2.6 Standard of Performance. Developer and its contractors shall perform all work required with respect to the construction of the Public Improvements in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed 3 Construction and Credit Agreement 004
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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.
3.0 Maintenance of Public Improvements. City shall not be responsible or liable for the maintenance or care of the Public Improvements. until such Public Improvements are accepted by City. City shall exercise no control over the Public Improvements until accepted.
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 Public 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 after receiving notice from City to do so, City may 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.
4.0 Fees and Charges. Developer shall, at its sole cost and expense, pay all fees, charges, and taxes arising out of the construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service established by City. Fees and Charges may be reimbursable as Soft Costs in accordance with Section 14.3.3 of this Agreement.
5.0 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.
6.0 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 reasonably acceptable to City guaranteeing that no such claims of liens will be recorded or become a lien upon any portion of the Development Parcel.
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7.0 Acceptance of Public Improvements; As-Built or Record Drawings. If the Public Improvements are completed by Developer in accordance with the Plans and Specifications, 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 Public Improvements in accordance with California Civil Code section 3093 ("Notice of Completion"), at which time the accepted Publie 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 one (1) set of "as-built" or record drawings or plans to the 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.
8.0 Warranty and Guarantee. Developer hereby 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 unsatisfactory portion of the Public Improvements, in accordance with the.
Plans and Specifications. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost and expense of Developer and its surety. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace; or reconstruct any Improvement following expiration of the Warranty or any extension thereof.
Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement.
9.0 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 (after all notice and cure periods set forth 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.
10.0 Default; Notice; Remedies.
10.1 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").
Developer shall substantially commence the work required to remedy the default or violation within fiye (5) business days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice via e-mail to the following: Matt. Wilcox @GreshamSavage.com, Donovan. [email protected], [email protected], [email protected], Kathleen. Bonesz@ 5 Construction and Credit Agreement 004
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Kimley-Horn.com, Gregory. [email protected], [email protected] and [email protected], and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice, 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 expenses as provided for in Section 9.0 of this Agreement.
10.2 Failure to Remedy; City/County Action. If the work required to remedy the noticed default or violation is not commenced within the time required under Section 10.1 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.
10.3 Other Remedies. No action by City pursuant to this Section 10.0 et seq. of this Agreement 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, injurctive relief, or specific performance.
11.0 Security; Surety Bonds. Prior to the commencement of any work on the Public Improvements, Developer or its contractor shall provide City with surety bonds in the amounts and under the terms set forth below or, at the City's request, in lieu of surety bonds, a letter of credit or letters of credit by a banking institution with a rating to be approved by the City and erms to be approved by the City eaterit he acon ofte Series ampere stimated actual costs (the
determined by City after Developer has awarded a contract for construction of the Public Improvements in accordance with this Agreement. If City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer or its contractor shall adjust the Security in the amount requested by City. Developer's compliance with this Section 11.0 et seq.. of this Agreement shall in no way limit or modify Developer's indemnification obligation, provided in Section 12.0 of this Agreement.
11.1 Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 10.0 et seq. of this Agreement, and to secure the Warranty of the Public Improvements, Developer or its contractor shall provide City a faithful performance bond in an amount which sum shall be not less than one hundred percent (100%) of the Estimated Costs.
The City may, in its reasonable discretion, partially release a portion or portions of the Security provided under this section as the Public Improvements are accepted by City, provided that Developer is not in default on any provision of this Agreement and the total remaining Security is not less than twenty percent (20%) of the Estimated Costs. All Security provided únder this section shall be released at the end of the Warranty period, provided that Developer is not in default on any provision of this Agreement.
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11.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, materialmen, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Developer or its contractor shall provide City a labor and materials bond in an amount which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The Security provided under this section shall be released by City six (6) months after the date City accepts the Public Improvements.
11.3 Additional Requirements. The surety for any surety bonds ptovided as.
Security shall have a current A.M. Best rating of at least "A" and FSC-VIII, and shall be licensed to do business in the State of California. As part of the obligation secured by the Security and in. addition to the face amount of the Security, Developer, its contractor or the surety shall secure the costs and reasonable expenses and fees, including reasonable attorneys' fees and costs, incurred by City in enforcing the obligations of this Agreement. Developer, its contractor and the surety shall stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the Plans and Specifications shall in any way affect its obligation on the Security.
1.4 Evidence and Incorporation ot Security. Evidence ot the Security shall b rovided on the forms set forth in Exhibit "E unless other forms are deemed acceptable by th City, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "F" and incorporated herein by this reference.
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, withoat 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 to he extent caused by the negligence or willful misconduct of City as determined by a court o dministrative body of competent jurisdiction. Developer's obligation to indemnify shall surviv 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.
13.0 Insurance.
13.1 Types; Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during performance of this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.
13.1.1 General Liability. Occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than Two Million 7 Construction and Credit Agreement 004
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Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage.
13.1.2 Business Automobile Liability. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any auto owned, leased, hired, or borrowed by the insured or for which the insured is résponsible.
13.1.3 Workers' Compensation. Workers' compensation insurance with limits as required by the Labor Code of the State of California and employers liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence, at all times during which insured retains emplovees.
13.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than Two Million Dollars ($2,000,000) per occurrence, shall be procured and maintained for a period of five (5) years lection of the following completion of the Public Improvements. Such insurance shall be. endorsed to include contractual liability.
13.2 Deductibles. Any deductibles or self-insured retentions in excess of Fifty:
either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as and its contractors shall provide a financial guaranty satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
13.3 Additional Insured; Separation of Insureds. The Required Insurance, except. for the professional liability and workers' compensation insurance, shall name City as an additional insured with respect to work performed by or on behalf of Developer or its contractors, including any materials, parts, or equiprent furnished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, or agents.
13.4 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, or agents. The policy required for workers" compensation insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
13.5 Certificates; Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement 8 Construction and Credit Agreement 004
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can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
13.6 Term; Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement Which Will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on thirty (30) days' prior written notice to City.
13.7 Insurer Rating. Unless approved in writing by City, all Required Insurance shall be placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least "A-" and FSC-VIII.
13.8 Self-Insurance. Notwithstanding anything to the contrary contained herein, as long as Devetoper's tangible net worth exceeds One Hundred Million and No/100 Dollars ($100,000,000.00), Developer shall have the right to retain (in whole or in part) the financial risk for any claim required to be insured against hereunder on an uninsured basis (i.e., to self-insure), in which event the requirement for maintaining insurance policies as provided under this Section 13 or any other provision of this Agreement shall not apply.
14.0 Fees Credit and Reimbursement.
14.1 Regional Traffic Fee Obligation. The City levies a development impact fee for regional traffic improvements (the "Regional Traffic Fee Obligation"). City and Developer acknowledge that as of the date of this Agreement, the total amount of Regional Traffic Fee Obligation owed by Developer to the City is One Million Two Hundred Thirteen Thousand Forty-Five Dollars and 74 Cents ($1,213,045.74).
14.1.1 Credit Offset against Regional Traffic Fee Obligation. In consideration for Developer's obligation under this Agreement to construct the Public Improvements, the City shall grant a credit to offset the Regional Traffic Fee Obligation (the "Regional Traffic Fee Credit") at the earlier of (i) completion of the Public Improvements; or (i1) when adequate security is posted for the Public Improvements. At the time of this Agreement, the estimated cost to construct the Public Improvements is Five-Hundred Ninety-Three Thousand Seven Hundred Seventy Seven Dollars and 14 Cents ($593,777.14), as set forth on Exhibit (the "Estimated Regional Traffic Fee Credit"). The actual regional traffio fee credit shall be calculated as provided in Section 14.2 ("Actual Regional Traffic Fee Credit") and shall be subject to the maximum fee credit limit contained in Section 14.3 of this Agreement.
14.1.2 Application of Estimated Regional Traffic Fee Credit against Regional Traffic Fee Obligation. Prior to the issuance of a building permit for the Project, Developer shall pay to City the amount of Six Hundred Nineteen Thousand Iwo Hundred Sixty-Eight Dollars and 60 Cents ($619,268.60) representing the Regional Traffic Fee Obligation less the Estimated Regional Traffic Fee Credit.
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14.2 Reconciliation; Final Offset against Outstanding Fee Obligations. Upon completion of the Public Improvements by Developer, Developer shall submit to the. City Engineer such information as the City Engineer may require to calculate and verify the total eligible and actual costs incurred by Developer to construct the Public Improvements ("Verified Construction Costs"). The Actual Regional Traffic Fee Credit shall be equal to the Verified Construction Costs for each of the eligible improvements, subject to the maximum fee credit limit contained in Section 14.6, and shall be used for the purposes of the final reconciliation.
If the Actual Regional Traffic Fee Credit is less than the Estimated Regional Traffie Fee Credit, Developer shall pay the balance to City to fully satisfy Developer's Regional Traffic Fee Obligation within thirty (30) days after the City makes such determination and demands payment from Developer. If the Actual Regional Traffic Fee Credit exceeds the Estimated Regional Traffic Pee Credit, City shall refund the balance, subject to the maximum fee credit limit contained in Section 14.3, to Developer within thirty (30) days after the City makes such determination.
14.3 Fee Credit Limits. Notwithstanding anything to the contrary in this Section 14, the following limits apply with respect to credit and reimbursement of DIF Fees.
14.3.1 DIF Fee Categories. Developer acknowledges that DIF Fees, as they exist at the time building permits are issued, are imposed in various separate categories to fund specific public facilities. Credit against DIF Fees may only be • applied for eligible improvements identified in the specific DIF category. As an:
example, if Developer constructs a street improvement that is eligible for credit against the Regional Traffic Fee, Developer shall not receive credit against the.
Storm Drain Fee for the street improvement.
14.3.2 Maximum Credit. The amount of the Actual Fee Credit for cach.
DIF Fee category shall not exceed the amount of the DIF Fees paid for each respective DIF Fee category.
14.3.3 Soft Costs. The City Engineer shall, in his/her sole discretion, determine the amount of reasonable soft costs eligible for reimbursement under the Fee Credit provision of Rialto Municipal Code Section 3.33.100. Such amounts may include the reasonable soft costs. of the City related to the Public Improvements including indireçt costs of construction, including professional engineering and design services, construction management, soils testing, administrative costs, permits, plan check fees and inspections, In order 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 the City. The total amount of the soft costs shall not exceed fifteen percent (15%) of the amount eligible for reimbursement. The City may, in its sole discretion, reduce or disallow reimbursement for any costs the City finds excessive or unreasonable. 10 Construction and Credit ngreement 004.
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15.0 Miscellaneous.
15.1 Assignment. Developer may not assign any of its rights pursuant to this Agreement to a purchaser of a portion or portions of the Development Parcel ("Assignment").
15.2 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 contrattors 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.
15.3 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind cach respective Party.
15.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may. designate by written notice:
Prior to opening for business. For any period of time prior to the dale thin to do po) al notice and tae of the Priation hal pe sent to the following addresses:
If to Developer: If to City:
Wal-Mart Stores, Inc. City of Rialto
Attn: Real Estate Director 150S. Palm Avenue
(Ref: Rialto, California Rialto, CA 92376
Store No. 1862-03) Attn: City Administrator
2001 SE 10th Street
Bentonville, AR 72716-0550
With a Copy to: With a Copy to:
Gresham Savage Nolan & Tilden, APC Aleshire & Wynder, LLP Attn: J. Matthew Wilcox Attn: Fred Galante
(Ref: Rialto, California 18881 Von Karman Avenue,.
Store No. 1862-03) Tower 17, Suite 1700
550 E. Hospitality Lane, Suite 300 Irvine, CA 92612
San Bernardino, CA 92408-4205
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With a Copy to:
Wal-Mart Stores, Inc.
Attn: Gregory Tesoro, Esq.
(Ref: Rialto, California
Store No. 1862-03)
2001 SE 10th Street
Bentonville, AR 72716-0550
15.4.2 After opening for business. For any period of time after Developer has opened a store as part of the Project (Developer having no obligation to do so), • all notices and other communications shall be sent to the following addresses:
If to Developer: If to City:
Wal-Mart Stores, Inc. City of Rialto
Attn: Property Manager 150 S. Palm Avenue
(Ref: Rialto, California Rialto, CA 92376
Store No. 1862-03) • Attn: City Administrator
2001 SE 10th Street
Bentonville, AR 72716-0550
With a Copy to: With a Copy to:
Wal-Mart Stores, Inc. Aleshire & Wynder, LLP
Attn: President Attn: Fred Galante
(Ref: Rialto, California 18881 Von Karman Avenue,
Store No. 1862-03) Tower 17, Suite 1700
2001 SE 10th Street Irvine, CA 92612
Bentonville, AR 72716-0550
Notices shall be deemed effective upon receipt or rejection only.
15.5 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.
15.6 Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, 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. 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.
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15.7 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
15.8 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.
15.9 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 presentatives, or assigns. This section shall not be construed as an authorization for any Par assign any right or obligatio
15.10 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
15.11 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.
15.12 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. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any. other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.
15.13 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.
15.14 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
15.15 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.
15.16 Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) 13 Construction and Credit Agreement 004 -
W707-RIALTO -- 1740587.1
entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound
[SIGNATURES OF PARTIES ON NEXT PAGE]
•
14 Construction and Credit Agreement 004
W707-RIALTO -. 1740587.3
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
DEVELOPER:
WAL-MART STORES, INC.,
a Delaware corporation
By: Date: 10-21-2015
Name:Will Am bE ALUBRIGHT
Is: SP. Director of Rpal Estate
CITY:
City of Rialto, a California municipal corporation
About
ATTEST:
Paulas
By:
Barbara McGee, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LIP
That
By:
Fred Galante, Esq., City Attorney
15 Construction and Credit Agreergent 004 (
W707-RIALTO -- 1740587.1
EXHIBIT "A"
LEGAL DESCRIPTION OF THE WALMART DEVELOPMENT PARCEL
The land referred to herein is situated in the State of California, County of San Bernardino, City of Rialto and described as follows:
Parcel I:
The North half of Lot 193 of the Subdivision of Lands Belonging to the Semi-Tropic Land & Water Company, in the County of San Bernardino, City of Rialto, as shown by map on file in Book 11, Page 12 of Maps, Records of San Bernardino County.
Excepting therefrom, the South 105 feet of the East 420 feed thereof.
Also excepting therefrom the South 105 feet of the West 420 feet thereof. (APN: 0132-101-17 and 0132-161-08)
Parcel II:
Parcels 1, 2 and 3 of Parcel Map 6577, in the City of Rialto, as shown by map on file in Book 73,
(APN: 0132-091-04; -05 and -06)
(APN: 0254-031-02; -03 and -04)
Parcel IV:
The South 105 feet of the West 420 feet of the North half of Lot 193 of the Subdivision of Lands Belonging to the Semi-Tropic Land & Water Company, in the County of San Bernardino, City of Rialto, as shown by map on file in Book 11, Page 12 of Maps, Records of San Bernardino County.
(APN: 0132-161-01)
APN: 0132-101-17, 0132-161-08, 0132-091-04, 0132-091-05, 0132-091-06, 0254-031-02, 0254- 031-03, 0254-031-04, and 0132-161-01
(End of Legal Description)
Exhibit "A"
W707-RIALTO -- 1740587.1
EXHIBIT "B"
PUBLIC IMPROVEMENTS
"Public Improvements" or "Improvements" as defined in the Agreement shall consist of the following improvements:
1. Construction of approximately 1,600 lineal feet, more or less, of new master planned public roadway improvements (including curbs, gutters, and new roadway improvements, including a raised center median) along that westerly portion of Riverside Avenue lying generally north of Gateway Center Drive, and south of San
2. Construction of approximately 1,300 lineal feet, more or less, of master planned public roadway improvements (including curbs, sidewalks, and roadway improvements) along the southerly portion of San Bernardino Avenue lying easterly of Willow Avenue and westerly of Riverside Avenue (the "San Bernardino Improvements").
Exhibit "B"
W707-RIALTO - 1740587.1
EXHIBIT"
City of Rialto
Wal-Mart Supercent Project Development impact Fee Summary Bldg. Area Frontage Building Type
185,481 Retail Shopping Center
City of Rialto Calculated
Impact Fee Category Fee Schedule
Charges
City of Rialto
Fire Facilities $ 0.24
$ 44,515.44
General Facifties $ 0.10
$ 18,548.10
Law Enforcement $ 0.10
18,548.10 |
Library Na
Open Space $ 0.14
$ 25,967.34
Park Facilities Na
$
Storm Drain $ 0.62
$ 114,998.22
Street Medians $ 0.15
$ 27,822.15
Local Street & Signal Fee (Replaced by Regional Fee) 0,60 $ -
Regional Traffic Mitigation Fee $ 6.54
$ 1,213,045.74
Wasterwater Collection (Lines) $ 48.00 Note :
Wastewater Connection (Treatment) 40,992.00
$ 0.669 Note 1 $ 124,086.79
City of Rialto - Water Facilities (Readiness To Serve) 2" Domestic Meters 1 $ 27,200
1 vz* Landscape Meter $ 17,000
Meter Fees
Fire Line Senice Demand 2,834.00
8" Meter Fire Line 1 $ 28,002
===-===== =====
Total City Impact Fees $ 918
$ 1,703,559 38
Exhibit "C"
W707-RIALTO -- 1740587.1
EXHIBIT "D"
BIDDING AND CONTRACT REQUIREMENTS FOR
PUBLIC IMPROVEMENTS
Bidding Phase
A. Bidding Documents. Unless otherwise noted, the bidding documents shall conform ta the Unless impractical due to the nature of the Public Improvements, the bid proposal shall be unit priced rather than lump sum or time and materials.
2. It is recommended that the bidding documents require the bidder/contractor to provide the following bonds:
a. Bid Bond - 10% of the amount of the bid.
3. The bidding documents shall rèquire. the successful bidder to provide evidence of comprehensive public liability insurance in the amount of at least Two Million Dollars ($2,000,000) prior to the award of the contract.
The bidding documents shall provide for monthly progress payments to the contractor (with respect to the Additional Public Improvements).
The contractor shall be required to pay prevailing wages pursuant to Section 2.3.b of this Agreement.
The bidding documents must clearly state the time, date, and place where bids are to be submitted.
The bidding documents shall clearly state the amount of time to complete the work: The time allowed must be reasonable for the amount of work. Accelerated construction time allowances must be supplementally bid, and are not eligible for public finance ugless prevjously approved by the City's Public Works Director.
The bid documents must require the contractor to provide one hundred percent (100%) faithful performance and one hundred percent (100%) labor/materials bonds.
Developer shall keep a bidders list with e-mail addresses, and addenda should be sent via email to ensure quick receipt.
10. Conditioned bids shall not be accepted
B. Developer may pre-qualify bidders in accordance with California Public Contract Code Section 20101, by requiring all persons interested in bidding on any portion of the Public Exhibit "D" - Page 1
W707-RIALTO -- 1740587.1
Improvements to submit current financial statements and a pre-qualification questionnaire in a form approved by City, and by scoring each submission based on reasonable, objective criteria reasonably acceptable to City. Alternatively, if Developer already has a list of pre-qualified bidders, Developer shall provide the City with its pre-qualification questionnaire and/or list for the City's review and approval. Developer must implement an appeals procedure for responding to disputes in compliance with California Public Contract Code Section 20101(d).
If Developer elects to pre-qualify bidders, only those bidders who have submitted complete pre-qualification packets and obtained the minimum required score based on the objective rating system adopted by Developer shall be permitted to bid on any portion of the construction work for the Public Improvements.
C. Addenda shall be submitted by confirmed electronic transmission to all bidding document holders and the City's Public Works Director at the same time. The last addendum shall be issued no later than three (3) Business Days prior to the date of opening bids.
D. Bids shall be submitted electronically as provided by the bidding documents and confirmed by electronic transmission.
E. Bids shall not be accepted after the stated time for submission.
F. Pursuant to Public Contracts Code Section 1601, electronic opening of bids shall not occur prior to the deadline for the stated time for submission and shall be conducted by Developer at Developer's place of business or other site.
G. Conditioned bids, unless the bid proposal lists them for all to bid on, shall not be accepted.
H. The arithmetic of the bid proposals received shall immediately be checked for errors.
I. All bids received, including the confirmation of electronic submission, shall be forwarded to the City's Public Works Director.
Award shall be made to the most responsible qualified bidder, as determined by the Developer, within five (5) Business Days after the bid opening. No fewer than three (3) bids must be received for the Contract to be awarded.
K. A preconstruction meeting shall be held with the contractor prior to beginning the work. A City representative shall be invited to attend thè meeting.
The Notice to Proceed shall be issued within a reasonable period of time following the contract execution.
Construction Phase
A. The City's Public Works Director shall be provided a copy of the construction schedule.
B. Developer shall require the contractor to conduct weekly construction status meetings to which the City's Public Works Director shall be invited.
Exhibit "D" - Page 2
W707-RIALTO -- 1740587.1
C. Any additional costs incurred for the benefit of Developer, such as accelerating the construction schedule, shall not be eligible for reimbursement unless previously approved by the City's Public Works Director.
D. Any additional construction costs incurred due solely to unexcused delays caused by Developer shall not be eligible for reimbursement under this Agreement.
E. All contracts and construction related records shall be available to City as and when required for the final determination of eligible costs for reimbursement.
F. Developer must file a Notice of Completion within thirty (30) days of City's approval of the Public Improvements (determining substantial completion).
G. Developer must comply with all applicable requirements of the Public Contract Code with regard to stop notices and liens filed.
H. Developer shall make prompt payment to all contractors and subcontractors.
I. Amounts reflected in any stop notice filed against Developer or City shall be withheld from progress payments to contractors/subcontractors.
J. All Public Improvements constructed by Developer are subject to inspection by or on behalf of the City Engineer. Construction shall be scheduled to allow for periodic inspection by the City Engineer or his designee. The Developer's contractor will be required to provide adequate quality assurance and quality control measures to ensure all public improvements are constructed in accordance with the Standard Specifications for Public Works Construction or Caltrans Standard Specifications, as appropriate for the work to be constructed.
General
Any deviation from these rules must be approved by either the City Administrator, Public Works Director, or City Engineer or their designee.
Exhibit "D" - Page 3
W707-RIALTO -- 1740587.1
EXHIBIT "E"
FORMS FOR SECURITY
[DOCUMENTS ON FOLLOWING PAGES]
Exhibit "E" - Page 1
W707-RIALTO .. 1740587.1
BOND NO.
INITIAL PREMIUM:
SUBJECT TO RENEWAL
PERFORMANCE BOND
WHEREAS the City of Rialto has executed an agreement with WAL-MART STORES, INC, a Delaware eorporation, a (hereinafter "Developer"), requiring Developer to perform certain work consisting of but not limited to, furnishing all labor, materials, tools, equipment, services, anc incidentals for the construction of Public Improvements (hereinafter the "Work") WHEREAS, the Work to be performed by Developer is more particularly set forth in that certain Credit and Construction Agreement dated _ (hereinafter the "Agreement"); and
WHEREAS, the Agreement is hereby referred to and incorporated herein by this reference; and
WHEREAS, Developer or its contractor is required by the Agreement to provide a good and sufficient bond for performance of the Agreement, and to guarantee and warranty the Work constructed thereunder.
NOW, THEREFORE, we the undersigned,
Principal and _ a corporation organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Rialto in the being not less than one hundred percent (100%) of the total cost of the Work as set forth in the Agreement, we bind ourselves, our heirs, execufors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Developer and its contractors, or their heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
Exhibit "" - Page 2
W707-RIALTO -- 1740587.1
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the said Agreement or to the Work to be performed thereunder or the specification accompanying the same shall in any way affect it:
obligations on this bond, and it does hereby waive notice of any such change, extension of time alteration or addition to the terms of the Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this . day on - 2015.
Principal
By:
President
Surety
By:
Attorney-in-Fact
•
Exhibit "E" - Page 3
W707-RIALTO -- 1740587.2
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
STATE OF )
COUNTY OF •
On before me,
- Notary Public personally
_ who proved to me on the basis
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.
WITNESS my hand and official seal.
Signature (Seal)
Exhibit "E" - Page 4
W707-RIALTO -- 1740587.1
CERTIFICATE AS TO CORPORATE PRINCIPAL
_ certify that I am the
of the corporation named as principal in the attached bond, that (Corporate Seal)
Signature
Date
NOTE: A copy of the power of attorney to local representatives of the bonding company may be attached hereto.
Exhibit "E" - Page 5
W707-RIALTD -- 1740587.1
BOND NO.
INITIAL PREMIUM:
SUBJECT TO RENEW AL
LABOR & MATERIAL BOND
WHEREAS the City of Rialto has executed an agreement with, WAL-MART STORES, INC., a Delaware corporation (hereinafter "Developer"), requiring Developer to perform certain work consisting of but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the construction of Public Improvements (hereinafter "Work"); certain Credit and Construction Ag be ment daed by Developer is more particularly set forth inf the "Agreement"); and .., (hereinafter
WHEREAS, Developer or its contractor is required to furnish a bond in connection with the Agreement providing that if Developer or any of his or its contractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for or about the performance of the Work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the provisions of 3248 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a rcasonable attorney's fee in case suit iş brought on the bond.
NOW, THEREFORE, we the undersigned,
Principal and _, a corporation organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Rialto and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the said Work, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to said Work to be done, and all persons performing work or labor upon the same and all persons supplying materials aforesaid, the sum
sum being not less than 100% of the total amount payable by Developer under the terms of the Agreement, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if. Developer or its contractors, or their heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Work contracted to be done, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 9100, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of Exhibit "E" - Page 6
W707-RIALTO -- 1740587.1
California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein.
In case legal action is required to enforce the provisions of this bond, the prevailing party shall be entitled to recover reasonable attorneys' fees in addition to court costs, necessary disbursements and other consequential damages. In addition to the provisions hereinabove, it is agreed that this bond will inure to the benefit of any and all persons, companies and corporations entitled to make claims under Sections 8024, 8400, 8402, 8404, 843Q or 9100 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the Agreement or to the Work to be performed thereunder or the specification accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this _ day on -, 2015.
Principal
By:
President
Surety
By:
Attorney-in-Fact
Exhibit "E" - Page 7
W707-RIALTO - 1740587.1
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
STATE OF
COUNTY OF
before me,
appeared
of satisfactory evidence to be the persons) 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.
WITNESS my hand and official seal.
Signature. (Seal)
Exhibit "E" - Page 8
W707-RIALTO -- 1740587.1
CERTIFICATE AS TO CORPORATE PRINCIPAL
→ certify that I am the
of the corporation named as principal in the attached bond, that who signed the said bond on behalf of the principal was of said corporation; that I know his signature, and
his signature thereto is genuine; and that said bond was duly signed, sealed and. attested for and in behalf of said corporation by authority of its governing Board. (Corporate Seal)
Signature
Date
NOTE: A copy of the power of attorney to local representatives of the bonding company may be attached hereto.
:
Exhibit "E" - Page 9
W707-RIALTO -- 1740587.1
LETTER OF CREDIT
Issuing Bank:
(BANK NAME)
(STREET ADDRESS)
(CITY, STATE, ZIP CODE)
Issue Date:
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
Applicant/Customer:
(NAME)
(ADDRESS)
(CITY, STATE, ZIP)
Beneficiary:
City of Rialto
150 S. Palm Ave.
Rialto, CA 92376
Amount: US $_
US DOLLARS
Expiry Date: (ONE YEAR FROM ISSUE DATE)
At the request of ("Name of Customer") (hereinafter "Customer"), the (Name of Bank) hereby establishes in your favor an Irrevocable Letter of Credit (the "Credit") for a total amount of U.S. available by your sight draft, drawn on the "Bank" expiring on (insert date) unless automatically renewed as herein provided,
This Letter of Credit shall be automatically extended for additional periods of one (1) year from the present or future expiration date, unless we notify you and the Customer via courier or certified mail at least one-hundred twenty (120) calendar days prior to the then expiration date that we have elected not to renew this Letter of Credit. Thirty (30) days after receipt of such notice, you may draw on this Letter of Credit by presentation of the documents mentioned herein.
This Letter of Credit is issued in connection with the obligation of the Customer for public improvements located at (insert address or reference legal description to be attached) within the City of Rialto, California, pursuant to Precise Plan of Design 2102R ("PPD") and Exhibit "B" of' the Construction and Credit Agreement between the City and Customer dated _ ("Construction and Credit Agreement"). A drawing under this Credit shall be made by you by presenting to us this Letter of Credit and a demand in writing signed by a person who has been duly authorized to sign on your behalf.
Exhibit "E" - Page 10
W707-RIAL.TO -- 1740587.1
Said demand shall refer to this Credit by the above number, shall state the amount demanded and shall certify one of the following:
a) That the Customer has failed to comply with the conditions of the grading permit after thirty (30) days written notice to the Customer demanding compliance with the conditions of said permit, or, b) That the Customer is adjudged as bankrupt, or,
c) That a receiver has been appointed by reason of Customer's insolvency, or d) The Customer or any of Customer's contractors or agents has violated a term or condition of the Construction and Credit Agreement, Or,
e) The work authorized by the above PPD has been left in a hazardous condition, or, f) The work remains incomplete and the City of Rialto has received notice that we have elected not to renew this Letter of Credit.
Upon receipt of the said documents we shall pay to you the amount stated in the said demand to be Payable to you without insuria with to you have ight to such am pand as youcene this Cred, it ory, do not exced in the age ale an gracion this bei comic edi a sali letory mand pen rescipl (BANK NAME)
BANK OFFICER
THAT 1 REUD ARTIN THE LETTER ORDER AS CONTACT THE LETTER
OF CREDIT DEPARTMENT AT
Exhibit "E" - Page 11
W707-RIALTO - 1740587.1
XHIBIT "F"
ESTIMATED CONSTRUCTION COSTS
Wal-Mart - Store 1862-03 - Public Improvements
NO. DESCRIPTION QUANTITY UNIT CoST TOTAL
San Bernardino Avenue Improvements
1 Install new 8" curb and Gutter (includes grading) 1,090 LF 17.00 $ ,B5000
2. Construct full depth roadway section (includes grading, base and asphalt section) 15,000 SF 6.00 $. 90,30.00 3 Install new Traffic signage and striping 1 LS 15,000.00 SUB-TOTAL SAN BERNARDING AVENUE 123.710.00
Riverside Avenue Improvements
Demo Existing AC burm, curb and gutter along frontage. 150 LF 100 5 150.00 2 install new 8" Curb and Gutter (includes grading) 1,550 $ 17.00 $ 26.350.00 Construct full depth roadway section (includes grading base and asphalt section) 22,80 6.00 $ 182720,00 4 Install new Traffic signage and striping 1 LS 15,000.00 SUB-TOTAL RIVERSIDE AVENUE 175.580.00
Raised Median on Riverside Avenue
1 Demo of Existing AC pavement (Sawcut and Pemove 11.200 SF 100 $ 11200.00 2 Install new 8" curb for Median (includes excavation/grading) 1480 LF 17.00 $ 25.150.00 3 Repair pavement around median 2200 SE 6.00 $ 3.200,00 4 Hardscape decorative brick pavers (2' x 2' 3.170 SF $ 5,00 $ 15,850,00 5 Landscape and Irrigation 5,080 EA $ 6.00 30,480.00
SUB-TOTAL MEDIAN IMPROVEMENTS $ 85,890,00
Estimated Hard Construction Costs $ 395,180.00
OFFSITE IMPROVEMENT PERMIT/ INSPECTION-$5208 + 3% OF VAL. > DOK $A.208.00 PREVAILING WAGE REQUIREMENT (18%) $71132.40
SWPP (5%) $9.759.00
TRAFFIC CONTROL (5%) $19,759.00
OVERHEAD AND PROFIT (5% $19,759.00
SUBTOTAL $539,797.40
10% CONTINGENCY 953.979.74
TOTAL ESTIMATED COSTS TO CONSTRUCT PUBLIC IMPROVEMENTS $593,777.14 Exhibit "F"
W707-RJALTO -- 1740587.1