Attachment B
Development Impact Fee
Credit Agreement
***THIS AGREEMENT SHALL BE OF NO FORCE OR EFFECT UNTIL APPROVED BY THE VICTORVILLE CITY COUNCIL AND FULLY EXECUTED BY THE PARTIES ***
DEVELOPMENT IMPACT FEE CREDIT AGREEMENT
THIS DEVELOPMENT IMPACT FEE CREDIT AGREEMENT (“Agreement”) dated , 20 , for reference purposes only, is made between PROLOGIS SCLC INVESTMENTS/LOT 45 LLC, a Delaware limited liability company (hereinafter “Developer”) and the CITY OF VICTORVILLE, a California municipal corporation and charter city (hereinafter “City”). City and Developer are from time to time individually referred to hereinafter as a “Party” and collectively referred to hereinafter as the “Parties.”
RECITALS
A. Developer is the owner and developer of certain real property consisting of approximately acres of undeveloped land located o n Lot 45, Within The Westside District of the SCLA Specific Plan, North of Commerce, West of Gateway, South Of Navigation and East of Adelanto Road in Victorville, California, as more particularly described on Exhibit “A” attached hereto and incorporated herein by this reference (the “Property”); and
B. Developer has obtained certain entitlements from the City, specifically ADMN23- 00101_ (the “Entitlements”), which allow for the development of a new approximately 1,300,000 sq. ft. industrial warehouse/distribution building located on vacant undeveloped graded property including parking, landscaping, drive -aisles, driveways, drainage basin and required off -site infrastructure improvements on the Property (the “Project”); and
C. City requires developers to pay certain development impact fees and/or capacity charges for the purpose of defraying all or a portion of the cost of public improvements, public services, and community amenities related to their projects (collectively “ Development Impact Fees” or “ DIF”) pursuant to Victorville Municipal Code (“ VMC”) Section 16 -5.01.080; Victorville City Council Policy No. CP-23-02 (“Policy No. CP-23-02”); City Council Resolution Nos. 22-045, 22-050, and 23-100; Victorville Water District Resolution Nos. VWD 22 -005, 22- 007 and 23-015 and the adopted nexus studies, Capital Improvement Plan referenced therein and the DIF fee schedules a ttached thereto; as such may be modified, supplemented, or superseded from time-to-time by resolutions of the Victorville City Council and the Victorville Water District (collectively “DIF Program”); and
D. Policy No. CP -23-02 authorizes the City under certai n circumstances to issue credits to developers who construct certain public improvements that are included within the City’s DIF Program to offset or reduce their DIF obligations; and
E. As a condition of City’s approval of the Project, specifically ADMN23 -00101 Condition of Approval, City has required Developer to construct Gateway Drive, a master planned road along the Project frontage, that would be partially funded by the Road Improvement provisions of the City’s DIF Program (the “DIF Improvements”) as further hereinafter described; and
F. City and Developer now wish to enter into this Agreement for the following purposes: (1) to provide for the timely delivery of the DIF Improvements; (2) to ensure that 2 delivery of the DIF Improvements is undertaken as if the DIF Improvements were constructed under the direction and authority of the City; and (3) to provide a means by which the Developer’s costs for delivery of the DIF Improvements is offset against Developer’s obligation to pay the applicable Road Improvement DIF 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:
1.0 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.
2.0 Construction of DIF Improvements . Developer shall construct or cause to be constructed at its own cost, expense, and liability the DIF Improvements referenced in the Recitals and more particularly described as: construction of Gateway Drive to ultimate half-width (102-feet total right-of-way) from Commerce Avenue to Navigation Road, including sidewalk, curb ramps, a raised center median improved with irrigation & landscaping and/or grouted river rock between the curbs, an additional 12-feet of pavement widening, an AC berm, and parkway grading on the opposite side of the street centerline as required by the City Engineer, and as shown more specifically on the plans, profiles, and specifications which have been or will be prepared by or on behalf of Developer and approved by City, and which are incorporated herein by this reference.
Construction of the DIF Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or pu blic safety. Developer shall be responsible for the replacement, relocation, or removal of any component of any existing public or private improvement in conflict with the construction or installation of the DIF Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City and the owner of such improvement. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to fully and adequately complete the DIF Improvements.
2.1 Pre-approval of Plans and Specifications . Developer is prohibited from commencing work on any portion of the DIF Improvements until all plans and specifications for the DIF Improvements have been submitted to and approved by the City. Approval by City shall not relieve Developer from ensuring that all DIF Improvements conform with all other requirements and standards set forth in this Agreement.
2.2 Permits and Notices. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the DIF Improvements and performance of Developer’s obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer.
2.3 Public Works Requirements. To ensure that the DIF Improvements will be constructed as if they had been constructed under the direction and supervision, or under the authority of, the City, Developer shall comply with the requirements set forth in Exhibit “B” 3 attached hereto and incorporated herein by this reference, with respect to the construction of the DIF Improvements, including without limitation payment of prevailing wages as required by California law. Should Developer fail to comply with the requireme nts in Exhibit “B”, any DIF Improvements so constructed shall not be eligible for DIF Credits or reimbursement (if applicable).
2.4 Quality of Work; Compliance with Laws and Codes. The construction plans and specifications for the DIF Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements.
The DIF Improvements shall be completed in accordance wi th all approved maps, plans, Entitlements, specifications, standard drawings, and amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
2.5 Standard of Performance . Developer and its contractors and/or subcontractors, if any, shall perform all work required, constructing the DIF Improvements in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors and/or subcontractors, if any, shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors and/or subcontractors, if any, 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.
2.6 Alterations to DIF Improvements. All work shall be done and the DIF Improvements completed as shown on approved plans and specifications, and any subsequent approved alterations thereto. If during the course of construction and installation it is determined that the public i nterest requires alterations in the DIF Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the DIF Improvements to be completed may be accomplished without first giving prior notice thereof to Developer’s surety for this Agreement.
3.0 Maintenance of DIF Improvements. City shall not be responsible or liable for the maintenance or care of the DIF Improvements until City approves and accep ts them. City shall exercise no control over the DIF Improvements until accepted. At all times prior to City’s acceptance of the DIF Improvements, any use by any person of the DIF Improvements, or any portion thereof, shall be at the sole and exclusive ris k of Developer. Developer shall maintain all of the DIF Improvements in a state of good repair until they are completed by Developer and approved 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, 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 DIF Improvements or their condition prior to acceptance.
4 4.0 Fees and Charges. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of the construction of the DIF Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees established by City.
5.0 City Inspection of DIF Improvements. Developer shall, at its sole cost, expense, and liability, and at all tim es during construction of the DIF Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the DIF Improvements and areas where construction of the DIF 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 DIF Improvements, Developer shall provide to City such evidence or proof as City shall require that all persons, firms and corporations supplying work, labor, materials, supplies and equipment to the construction of the DIF 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 the City a title insurance policy or other security acceptable to City guaranteeing that no such claims of liens will be recorded or become a lien upon any of the Property.
7.0 Acceptance of DIF Improvements; As -Built or Record Drawings . If the DIF Improvements are properly completed by Developer and approved by City, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, City shall be authorized to accept the DIF Improvements. City may, in its sole and absolute discretion, accept fully completed portions of the DIF Improvements prior to such time as all of the D IF Improvements are complete, which shall not release or modify Developer’s obligation to complete the remainder of the DIF Improvements. Upon the total or partial acceptance of the DIF Improvements by City, Developer shall file with the Recorder’s Office of the County of San Bernardino a notice of completion for the accepted DIF Improvements in accordance with California Civil Code sections 8182, 8184, 9204, and 9208 (“ Notice of Completion”), at which time the accepted DIF Improvements shall become the sole and exclusive property of City without any payment therefor. Notwithstanding the foregoing, City may not accept any DIF Improvements unless and until Developer provides one (1) set of “as -built” or record drawings or plans to the City for all such DIF Improvements. The drawings shall be certified and shall reflect the condition of the DIF Improvements as constructed, with all changes incorporated therein.
8.0 Warranty and Guarantee. Developer hereby warrants and guarantees all the DIF Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of the DIF Improvements, for a period of one (1) year following completion of the work and acceptance by City (the “ Warranty”).
During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the DIF Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requ irements of City, and to the approval of City. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to any DIF Improvements which have been 5 repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following the City’s acceptance of the repaired, replaced, or reconstructed DIF Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any DIF 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 DIF Improvements, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney’s 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, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement (“Default”) and make written demand upon Developer, to remedy the Default withing the time period specified in such written demand (“ Default Notice”). If the Default pertains to the failure of the Developer to reasonably and timely prosecute to completion the DIF Improvements, Developer shall substantially commence or cause the commencement of the work required to remedy the Default within five (5) days of the Default Notice; however, if the Default constitutes an immediate threat to the public health, safety, or welfare, City may provide the Default Notice verbally, and Developer shall substantially commence the required work within twenty -four (24) hours thereof.
10.2 Failure to Remedy; City Action . If the work required to remedy the noticed Default is not diligently prosecuted to a c ompletion acceptable to City within the time frame contained in the Default Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the Default, without the necessity of giving any further notice to Developer, its contractor, or the surety. The cost of all such work or remedial activity shall be recoverable by City from Developer. City’s right to take such actions shall in no way be limited by the fact that Developer, its contractor, or the surety may have constructed any of the DIF Improvements at the time of City’s demand for performance. In the event City elects to complete or arrange for completion of the remaining work and the DIF Improvements, City may require all work by Developer, its contractor, or the 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 6 exercise its rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
11.0 Security; Surety Bonds . Prior to the commencement of any work on the DIF Improvements, Developer or its contractor s hall provide City with surety bonds in the amounts and under the terms set forth below (collectively “Security”). The amount of the Security shall be based on the estimated actual costs to construct the DIF Improvements, as determined by City after Developer has awarded a contract for construction of the DIF Improvements to the lowest responsive and responsible bidder in accordance with this Agreement (“ Estimated Costs”). If City determines, in its sole and absolute discretion, that the Estimated Cos ts 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 DIF 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 guarantee and warranty of the DIF Improvements, Developer or its contractor shall provide to 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 sole and absolute discretion, partially release a portion or portions of the security provided under this section as the DIF 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 under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 11.0 of this Agreement, provided that Developer is not in default on any provision of this Agreement.
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 DIF 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 reduced or released pursuant to the provisions of VMC Section 17.64.070(3) following the City’s acceptance of the DIF Improvements.
11.3 Additional Requirements. Any surety bonds provided as Security hereunder shall be provided by a corporate surety admitted by the California Department of Insurance to transact surety insurance business in California (with an AM Best’s Insurance Guide rating of no less than A:VII) and otherwise satisfactory to the City . 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 attorney’s 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 DIF Improvements, or the plans and specifications for the DIF Improvements shall in any way affect its obligation on the Security. 7 11.4 Evidence and Incorporation of Security . Evidence of the Security shall be provided on the forms set forth in Exhibit “C” , and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit “C” and incorporated herein by this reference.
12.0 Indemnification. Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents (“City Indemnitees”) from and against 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, its employees, contractors, or agents in connection with the performance of this Agreement, or arising out of or in any way related to or caused by the DIF Improvements or their condition prior to City’s approval and acceptance of the DIF Improvements (“Claims”). This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of the City Indemnitees for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any Claims which are caused solely and exclusively by the active negligence, sole negligence, or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Developer’s obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City Indemnitees.
13.0 Insurance.
13.1 Requirements. At all times during the period covered by this Agreement (and t hrough the period of any Warranty), Developer shall procure and maintain at its own expense, and shall require its contractors and subcontractors to procure and maintain, at their own expense, the following policies of insurance:
(a) Commercial General Liability (“CGL”) Insurance, providing coverage for bodily injury, personal injury, death, loss, property or other damage, with limits of at least Two Million Dollars ($2,000,000) per occurrence and at least Four Million Dollars ($4,000,000) general aggregate.
(b) Commercial Vehicle Liability Insurance of not less than One Million Dollars ($1,000,000) Combined Single Limit, covering bodily injury, death, or property damage, including hired and non-owned auto liability.
(c) Workers’ Compensation Insurance , as required by the State of California with statutory limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation i n favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
(d) Professional Liability. For any consultant or other professional who will engineer or design the DIF Improvements, liability insurance for errors and omissions with limits 8 not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the DIF Improvements. Such insurance shall be endorsed to include contractual liability.
(e) Pollution Liability Insurance, providing coverage for bodily injury, property damage, including cleanup costs and defense costs resulting from sudden, accidental and gradual pollution conditions, including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, hydrocarbons, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water. The minimum limit shall be Two Million ($2,000,000) each occurrence or claim.
13.2 Additional Insurance Requirements. With respect to the policies of insurance set forth above, compliance with the following is also required:
(a) Additional Insureds. Notwithstanding any inconsistent stateme nt in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage and Professional Liability, shall bear an endorsement whereby it is provided that, the City and its elected and appointed officials, officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the City Attorney, are named as Additional Insureds.
(b) Waiver of Subrogation Rights . Developer and i ts contractors shall require the carriers of all required insurance policies to waive all rights of subrogation against the City and its elected or appointed officials, officers, volunteers, employees, contractors, and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver. (c) Sufficiency of Insurers . Developer and its contractors and subcontractors must secure all policies of insurance required by this Agreement from a good and responsible company or companies licensed and authorized to do insurance business in the State of California, with an AM Best’s rating of not less than A:VII, unless otherwise unless otherwise acceptable to the City.
(d) Proof of Insurance Coverage Required Prior to Commencement of Work. Two (2) weeks prior to the commencement of any work hereunder, certificates of insurance evidencing the policies of insurance, coverages, and endorsements required by this Agreement and satisfactory to the City shall be furnished by Developer and its contractors to the City Clerk. In no event shall any work on the DIF Improvements be permitted to commence until adequate proof of insurance and endorsements have been so furnished.
(e) Other Endorsements. The policies shall be endorsed to provide that in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. In the case of cancellation for non-payment, ten (10) days advance written notice shall be given. The CGL and vehicle liability policies shall be endorsed as Primary and Non-contributory.
9 14.0 DIF Credits.
14.1 Developer’s DIF Obligation . Developer hereby agrees and accepts that as of the date of this Agreement, the amount Developer is obligated to pay to City for Road Improvement DIF for the Project is _ONE MILLION TWO HUNDRED FIFTY-NINE THOUSAND SEVEN HUNDRED SEVENTY-TWO DOLLARS AND TWENTY CENTS ($1,259,772.20) (the “DIF Obligation ”). This DIF Obligation shall initially be determined under the City Council policy, nexus studies, and DIF fees schedule(s) in effect for the City at the time Developer submits a building permit application for the DIF Improvements. This DIF Obligation does not have to be paid until the time of final inspection of the completed DIF Improvements. Notwithstanding the foregoing, Developer agrees that this Agreement shall not prohibit City from adjust ing the DIF Obligation in accordance with DIF Program.
14.2 Credit Offset Against DIF Obligation. Pursuant to Section VII of Policy No.
CP-23-02 and in consideration for Developer's obligation under this Agreement for the delivery of the DIF Improvements, a credit in an amount estimated to be equal to the lesser of: (A) Sixty - Seven percent (67%) of the DIF Obligation to be paid by Developer; or (B) Sixty -Seven percent (67%) of the estimated cost of the DIF Improvements as identified in the DIF study in effect at the time of the issuance of a building permit for the DIF Improvements shall be applied by City to offset the DIF Obligation, subject to adjustment and reconciliation under the provisions of this Section 14 (the “DIF Credit”). Developer hereby agrees that the actual amount of the DIF Credit shall be determined and applied following the final inspection and acceptance of the completed DIF Improvements, provided that Developer has complied with all the requirements of th is Agreement, including those specified in Exhibit B.
14.3 Verified Cost of the DIF Improvements. Following the inspection by the City and acceptance of the DIF Improvements by the City Council, Developer shall submit to the City Engineer the information set forth in the attached Exhibit “D”. The City Engineer, or his or her designee, shall use the information provided by Developer to calculate the total actual costs incurred by Developer in delivering the DIF Improvements covered under this Agreement (“DIF Verified Costs”). The City Engineer will use his or her best efforts to determine the amount of the DIF Verified Costs and provide Developer written notice thereof within thirty (30) calendar days of receipt of all the required information from Developer.
14.4 Reconciliation; Final Credit Offset Against DIF Obligation . The Developer is aware of and accepts the fact that credits are speculative and conceptual in nature.
No actual DIF Credit will be applied until the DIF Verifi ed Costs are determined through the reconciliation process. The actual DIF Credit applied will only be determined by the reconciliation process.
(a) DIF Balance. If the dollar amount of the actual DIF Credit is less than the dollar amount of the DIF Obligatio n, the City Building Official, or his /her designee shall provide written notice to Developer of the amount of the difference owed (“DIF Balance”) and Developer shall pay the DIF Balance to fully satisfy the DIF Obligation.
10 (b) DIF Reimbursement. NOT APPLICABLE.
(c) DIF Overpayment. If the dollar amount of the actual DIF Credit exceeds the estimated DIF Credit, but is less than the DIF Obligation, but the actual DIF Credit plus additional monies collected by City from Developer for the DIF Obligation exceed the DIF Obligation (“DIF Overpayment”), Developer will be deemed to have fully satisfied the DIF Obligation for the DIF Improvements and may be entitled to a refund.
14.5 Reimbursement Agreement. NOT APPLICABLE.
15.0 Term. This Agreement shall expire and become null and void five (5) years from the later of the date first indicated above, or the date of execution by both Parties.
16.0 Miscellaneous.
16.1 Assignment. Developer may assign all or a portion of its rights pursuant to this Agreement to a purchaser of a portion or portions of the Property ("Assignment"). Developer and such purchaser and assignee (" Assignee") shall provide to City such reasonable proof as it may require that Assignee is the purchaser of such portions of the Property. Any assignment pursuant to this section shall not be effective unless and until Developer and Assignee have executed an assign ment agreement with City in a form reasonably acceptable to City, whereby Developer and Assignee agree, except as may be otherwise specifically provided therein, to the following: (1) that Assignee shall receive all or a portion of Developer's rights pursu ant to this Agreement, including such credit as is determined to be applicable to the portion of the Property purchased by Assignee pursuant to Section 14.0 et seq. of this Agreement, and (2) that Assignee shall be bound by all applicable provisions of this Agreement. All DIF Credits are Project-specific and remain with the land.
16.2 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 contractors are exclusively and solely under the control and dominion of Developer. Any person or entities retained by Developer or any contractor to work on the DIF Improvements shall be retained on an independent contractor basis and shall not be employees of City. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of the City.
16.3 Warranty as to Property Ownership; Authority to Enter Agreement .
Developer hereby warrants that it owns fee title to the Property and that it has the legal capacity to enter into this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to execute this Agreement and bind eac h respective Party.
16.4 Prohibited Interests. For the term of this Agreement, no member, officer or employee of Developer or City, during the term of his or her service with Developer or City 11 shall have any direct interest in this Agreement or obtain any present or anticipated material benefit arising therefrom.
16.5 Notices. All notices required by or provided for under this Agreement shall be in writing and delivered in person or sent by certified or registered mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows:
If to City: City of Victorville
Attention: City Engineer
P.O. Box 5001
14343 Civic Drive
Victorville, CA 92393-5001
With a copy to: Green de Bortnowsky, LLP
30077 Agoura Court, Suite 210
Agoura Hills, CA 91301-2713
Attn: Andre de Bortnowsky, City Attorney
If to Developer:
With a copy to:
If to surety:
Any Party or the surety may change such address by providing notice in writing to the other Party and thereafter notices shall be addressed and transmitted to such new address.
16.6 Cooperation; Further Acts . The Parties sh all 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.
16.7 Construction; References; Captions . It being a greed 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 12 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 the 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.
16.8 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding or effective unless executed in writing and signed by both Parties.
16.9 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.
16.10 Binding Effect . Each and all of the covenants and conditions shall be binding on and s hall 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.
16.11 No Third Party Beneficiaries . There are n o intended third party beneficiaries of any right or obligation assumed by the Parties.
16.12 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.
16.13 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 inter pret 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.
16.14 Attorneys’ Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incurred by the prevailing party, including actual attorneys’ fees (“Expenses and Costs”). Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of such Expenses and Costs, which shall include, without limitation, attorneys’ and experts’ fees, costs and expenses incurred in the following: (a) post judgment motions and appeals, (b) contempt proceedings, (c) garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation. This section shall survive the termination or expiration of this Agreement. 13 16.15 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.
16.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
17.0 Entire Agreement. This Agreement, together with all exhibits, constitutes the entire agreement of the Parties and supersedes any prior written or oral agreements between them with respect to the subject matter hereof.
18.0 Other Public Improvements Associated with Project . Nothing in this Agreement shall affect Developer’s obligation to construct such other non DIF funded public improvements as are required by the conditions of approval in the Entitlements for this Project. Developer agrees to execute the City’s standard “Agreement for Completion of Public Improvements” and shall install and construct such other required public improvements in accordance therewith.
[END OF PAGE – SIGNATURE PAGE FOLLOWS]
14 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the dates set forth beneath their signatures below:
DEVELOPER
PROLOGIS SCLC INVESTMENTS/LOT 45
LLC, a Delaware limited liability company
By: STIRLING CAPITAL INVESTMENTS,
LLC, a Delaware limited liability
company, its Sole Member
By: PROLOGIS, L.P., a Delaware limited
partnership, its Managing Member
By: Prologis, Inc., a Maryland
corporation, its General Partner
By:
Name:
Title:
Date:
(Proper Notarization of Developer’s
Signature is required and shall be attached)
CITY
City of Victorville
By:
Name:
Title:
Date:
ATTEST:
Jennifer Thompson, City Clerk
APPROVED AS TO FORM:
Andre de Bortnowsky, City Attorney
City of Victorville Risk Manager
Sandra Bostick
15 EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
[ATTACHED BEHIND THIS PAGE]
EXHIBIT “B”
BIDDING AND CONTRACTING REQUIREMENTS FOR DIF IMPROVEMENTS
1. Developer shall publicly advertise and obtain sealed bids for the construction of the DIF Improvements from qualified and state -licensed contractors in conformance with the standard procedures and requirements of the City with respect to its public works (as set forth in Article IV of Chapter 2.28 of the Victorville Municipal Code (VMC) and herein), or in a manner which is approved in writing by the City Manager or his/her designee.
THIS PROVISION IS NOT APPLICABLE TO THIS AGREEMENT; HOWEVER,
ALL CONTRACTORS AND SUBCONTRACTORS MUST BE QUALIFIED AND APPROPRIATELY STATE-LICENSED.
2. Developer shall require, and the specifications and bid and contract documents shall require, all such contractors to pay prevailing wages (in accordance with Articles 1 and 2 of Chapter 1, Part 7, Division 2 of the Labor Code) and to otherwise comply with applicable provisions of the California Labor Code, the Government Code and the Public Contract Code relating to public works projects of cities and in conformance with the standard procedures and requirements of the City for its public works (as set forth in Article IV of Chapter 2.28 of the VMC and herein), or in a manner which is approved in writing by the City Manager or his/her designee.
3. The contract or contracts for the construction of the DIF Improvements shall be awarded to the responsible bidder(s) submitting the lowest responsive bid(s) for the construction of the DIF Improvements.
4. All such contractors shall be required to provide proof of insurance coverage throughout the term of the construction of the DIF Improvements which they will construct in conformance with City’s standard procedures and requirements and the plans and specifications approved by the City.
5. Developer and all such contractors shall comply with such other requirements relating to the construction of the DIF Improvements which City may impose by written notification delivered to Developer and each such contractor at any time, either prior to the receipt of bids by Developer for the construction of the DIF Improvements, or, to the extent required as a result of changes in applicable laws, during the progress of construction thereof.
6. Developer shall provide proof to City, at such intervals and in such form as City may require that the foregoing requirements have been satisfied.
EXHIBIT “C”
FORMS FOR SECURITY
[ATTACHED BEHIND THIS PAGE]
DIF IMPROVEMENTS FAITHFUL PERFORMANCE BOND
(To Be Used with Development Impact Fee Credit Agreement)
Case No.: Bond No.:
Premium:
WHEREAS, the City of Victorville, a California municipal corporation and charter city, and
(hereinafter “Principal”) have entered into an agreement whereby Principal agrees to install and complete certain designated DIF improvements, which said Agreement, dated , 20 , and identified as DEVELOPMENT IMPACT FEE
CREDIT AGREEMENT for (hereinafter the
“Agreement”), is hereby referred to and made a part hereof; and,
WHEREAS, said Principal is required under the terms of said Agreement to furnish a bond for faithful performance of said Agreement.
NOW THEREFORE, we, the Principal and
, a corporation of the State of , doing business under and by virtue of the laws of the State of California and duly licensed to conduct a general surety business in the State of California, as surety, (hereinafter “Surety”), are held and firmly bound unto the City of Victorville (hereinafter “City”), in the penal sum of dollars, ($
. ), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above bounded Principal, his or its 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, and provisions in said Agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnif y and save harmless City, its officers, agents and employees, as therein stipulated, 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 attorney’s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise 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 or to the specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on , 20 .
Name of Principal (Developer) Name of Surety Company
By: By:
By: By:
By: By:
Mailing Address:
Address of Principal Address of Surety Company
City, State Zip Code City, State Zip Code
NOTICE: The signature of the Surety and the Principal on this bond must be acknowledged before a notary public. The Surety shall be authorized and licensed by the California Insurance Commissioner as an "admitted surety insurer."
POWER OF ATTORNEY REQUIRED. The Attorney-in-Fact (resident agent) who executes this bond on behalf of the surety company must attach a copy of his Power of Attorney as evidence of his authority. A notary shall acknowledge the power as of the date of the execution of the surety bond that it covers.
APPROVED AS TO FORM:
City Attorney
Risk Manager
DIF IMPROVEMENTS LABOR AND MATERIALS BOND
(To Be Used with Development Impact Fee Credit Agreement)
Case No.: Bond No.:
Premium:
WHEREAS, the City of Victorville, a California municipal corporation and charter city, and
(hereinafter “Principal”) have entered into an agreement whereby Principal agrees to install and complete certain designated DIF Improvements, which said Agreement, dated , 20 , and identified as DEVELOPMENT IMPACT
FEE CREDIT AGREEMENT (hereinafter the “Agreement”), is hereby referred to and made a part hereof; and,
WHEREAS, under the terms of said Agreement, Principal is required, before entering upon the performance of the work, to file a good a nd sufficient payment bond with the City of Victorville to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4, of the Civil Code of the State of California.
NOW THEREFORE, said Principal and
, doing business under and by virtue of the laws of the State of California and duly licensed to conduct a general surety business in the State of California, as surety, (hereinafter “Surety”), are held and firmly bound unto the City of Victorville (herein after “City”), and all contractors, subcontractors, laborers, material suppliers, and other persons employed in the performance of the aforesaid Agreement and referred to in the aforesaid Code of Civil Procedure in the sum of
dollars ($ . ), lawful money of the United
States, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4, of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Should the co ndition of this bond be fully performed, then this obligation shall become null and void, otherwise, it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any manner 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 or to the specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on , 20 .
Name of Principal (Developer) Name of Surety Company
By: By:
By: By:
By: By:
Mailing Address:
Address of Principal Address of Surety Company
City, State Zip Code City, State Zip Code
NOTICE: The signature of the Surety and the Principal on this bond must be acknowledged before a notary public. The Surety shall be authorized and licensed by the California Insurance Commissioner as an "admitted surety insurer."
POWER OF ATTORNEY REQUIRED. The Attorney-in-Fact (resident agent) who executes this bond on behalf of the surety company must attach a copy of his Power of Attorney as evidence of his authority. A notary shall acknowledge the power as of the date of the execution of the surety bond that it covers.
APPROVED AS TO FORM:
City Attorney
Risk Manager
EXHIBIT “D”
DOCUMENTATION TO BE PROVIDED TO CITY BY DEVELOPER FOR
DETERMINATION OF CONSTRUCTION COSTS
To assist City in determining the Construction Costs for a completed DIF Improvement, Developer shall provide the following documents to City:
1. Plans, specifications and Developer’s civil engineer’s cost estimate;
2. List of bidders from whom bids were requested;
3. Construction schedules and progress reports;
4. Contracts, insurance certificates and change orders with each contractor or vendor;
5. Invoices received from all vendors;
6. Canceled checks or proof of electronic payments made to contractors and vendors (copy both front and back of canceled checks);
7. Spreadsheet showing total costs incurred in and related to the construction of each DIF Improvement and the check number or electronic transaction information for each item of cost and invoice;
8. Final lien releases from each contractor and vendor; and
9. Such further documentation as may be reasonably required by City to evidence the completion of construction and the payment of each item of cost and invoice.