Loading...
Chino, City of, and Turner Chino Hills, LLC A2017-244AGREEMENT NO. A2017. 244 FOR REIMBURSEMENT OF IMPROVEMENTS AT WEST MONTE VISTA AVENUE AND CHINO HILLS PARKWAY THIS AGREEMENT FOR REIMBURSEMENT OF IMPROVEMENTS AT WEST MONTE VISTA AVENUE AND CHINO HILLS PARKWAY (the "Agreement") is made and entered into this 24th day of October , 2017 ("Agreement Date"), by and between the CITY OF CHINO, a California general law Municipal Corporation ("Chino"), the CITY OF CHINO HILLS, a California general law Municipal Corporation ("Chino Hills"), and TURNER CHINO HILLS, LLC, a California limited liability corporation ("Developer"). Chino, Chino Hills and Developer are hereinafter collectively referred to as the "Parties" and individually referred to as "Party." RECITALS WHEREAS, in 2012 and in 2013, in compliance with the California Environmental Quality Act ("CECIA"), Chino conducted an environmental review of a proposed Warehouse/distribution, light industrial and retail development project called "Majestic Chino Gateway" ("Project"), submitted by Majestic Realty Co. ("Project Developer"); and WHEREAS, on October 1, 2013, the City Council of Chino approved and adopted Resolution No. 2013-053, certifying the Environmental Impact Report ("EIR"), adopting environmental findings pursuant to CEQA and a statement of overriding consideratio s, and a Mitigation, Monitoring and Reporting Program ("MMRP") for the Proje ; and WHEREAS, said EIR relied on a traffic impact study that examined the impacts of the Project on traffic intersections that Chino shares with adjacent cities, including the traffic signal at the Shared Intersection ("MM TRANS -1"), and estimated that amount to be Seven Thousand Seven Hundred Five Dollars ($7,705) ("Project Fair -Share Amount"); and WHEREAS, the MMRP required the implementation of MM TRANS -1 be consistent with a multi -jurisdictional effort between Chino and Chino Hills to identify supplemental fair - share contribution funding sources necessary to implement the installation of the traffic signal at the Shared Intersection ("Traffic Signal"), consistent with the nexus requirements in the Mitigation Fee Act and CEQA guidelines ("MM TRANS -8"); and WHEREAS, further as part of the implementation of MM TRANS -1, the MMRP required Chino to hold in trust the Project Fair -Share Amount, and to apply that amount to any fee program adopted or agreed upon by Chino and Chino Hills with respect to the Traffic Signal, or, if no supplemental funding sources are identified within five (5) years of Chino's receipt the Project Fair -Share Amount, return the Project Fair -Share Amount to Project Developer ("MM TRANS -9"); and WHEREAS, on January 13, 2015, the City Council of Chino Hills adopted a Mitigated Negative Declaration for Environmental Assessment ("MND") and the Mitigation Monitoring Plan for the MND; introduced a Development Agreement and Zone Change 14ZC01 by Ordinance No.281 (the "Enabling Ordinance") and approved a General Plan Amendment 14GPA01; Tentative Parcel Map No. 19539; Site Plan Review 14SPR02; Major Variance Case No. 14MJV02; and Minor Variance Case No. 14MNV06, subject to the Enabling Ordinance becoming effective; and WHEREAS, on April 14, 2015, Chino Hills approved the Enabling Ordinance for Developer's Fairfield Ranch Commons, a mixed-use development, and, pursuant to the MND, required traffic mitigation measure TR -1, required Developer to install the Traffic Signal at the Shared Intersection priorto the issuance of certificate of occupancy, subject to fair -share contributions, which is consistent with the requirement of MM TRANS -8; and WHEREAS, Developer completed construction of the Traffic Signal on or before December 13, 2016; and WHEREAS, Chino and Chino Hills acknowledge that the installation of the Traffic Signal substantially complies with the mitigation measure MM TRANS -8; and WHEREAS, on June 29, 2015, Project Developer deposited, in trust, the Project Fair -Share Amount with Chino; and WHEREAS, Chino and Chino Hills desire to release the Project Fair -Share Amount to Developer in fulfillment of MM TRANS -8. AGREEMENT TERMS NOW, THEREFORE, for good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. Incorporation of Recitals. The Parties hereby affirm the facts set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein. Section 2. Chino's Fair -Share Contribution Towards Shared Intersection; Release. Chino and the Developer hereby agree, and Chino Hills acknowledges, that the Project Fair -Share Amount of Seven Thousand Seven Hundred Five Dollars ($7,705) completely and adequately fulfills Chino's fair -share cost of the installation of the Traffic Signal at the Shared Intersection consistent with the MMRP. Developer further agrees to release Chino, upon payment of the Project Fair -Share Amount to Developer, from any and all liability as to any costs related to Developer's installation of the Traffic Signal in excess of the Project Fair -Share Amount as defined in this Agreement. Section 3. Payment of Proiect Fair -Share Amount to Developer. Chino shall pay Developer the Project Fair -Share Amount of Seven Thousand Seven Hundred Five Dollars ($7,705) within sixty (60) days of the Agreement Date, in fulfillment of MM TRANS -9 of the MMRP. Section 4. Indemnification. To the full extent permitted by law, Developer agrees to indemnify, defend and hold harmless Chino and Chino Hills, their respective officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Developer, its officers, employees, agents, subcontractors, invitees, or any individual or entity for which Developer is legally liable ("indemnitors"), or arising from Developer's or indemnitors' reckless or willful misconduct, or arising from Developer's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, except claims or liabilities occurring as a result of Chino and/or Chino Hill's sole negligence or willful acts or omissions. The indemnity obligation shall be binding on successors and assigns of Developer and shall survive termination of this Agreement. Section 5. Assignment. Developer may assign by contract all or a portion of its rights and obligations pursuant to this Agreement to a third party purchaser of Developer ("Assignment"), subject to the written approval of Chino and Chino Hills. Developer and purchaser/assignee ("Assignee") shall provide to Chino and Chino Hills such reasonable proof as it may require that Assignee has the ability and financial commitment to undertake and complete the Traffic Signal. Developer and Assignee shall provide documentation and proof as may be deemed reasonably satisfactory to Chino and Chino Hills. Any assignment pursuant to this section shall not be effective unless approved in writing by Chino, Chino Hills and Developer. Section 6. 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 Chino, Chino Hills and Developer. Developer's contractors 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 Chino or Chino Hills. Section 7. Parties Bound. This Agreement shall be binding upon and for the benefit of the Parties and their respective agents, affiliates, assigns, employees, officers, representatives, and successors. Section 8. Legal Counsel. Chino, Chino Hills and Developer hereby expressly state that each has consulted with its attomey, or has had the opportunity to so consult, concerning all portions of this Agreement, and each has either been fully advised by its attorney with respect to its rights and obligations hereunder, or it has waived such advice. Section 9. Notices. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any person shall be in writing and either served personally, communicated by fax or electronic mail, or sent by prepaid, first-class mail to the address set forth below. Notice shall be deemed communicated immediately upon personal delivery, fax or email receipt, or seventy-two (72) hours from the time of mailing if mailed as provided in this Section: To Chino: City of Chino 13220 Central Avenue Chino, CA 91710 Attn: City Manager Fax: (909) 334-3720 with a copy to: Aleshire & Wynder, LLP 188881 Von Karman Ave., Suite 1700 Irvine, CA 92612 Attn: Fred Galante, Esq. Fax: (949) 223-1180 Email: fgalante@awattorneys.com To Chino Hills: City of Chino Hills 14000 City Center Dr. Chino Hills, CA 91709 Attn: City Manager Fax: (909) 364-2695 with a copy to: Hensley Law Group 2600 W. Olive Avenue, Suite 500 Burbank, California 91505 Attn: Mark Hensley, City Attorney Fax: 818-333-5121 To Developer: Turner Chino Hills, LLC c/o Turner Real Estate Investments 1500 Quail Street, #150 Newport Beach, CA 92660 Attn: Rusty Turner Fax: (949) 757-5400 Email: rtumer@turnerrei.com Section 10. 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. Section 11. Amendments. This Agreement may not be altered, amended, modified, or otherwise changed in any respect or particular whatsoever, except by a writing signed by the Parties. The Parties also hereby agree and acknowledge that they will make no claim at any time or place that this Agreement has been orally altered, amended, modified, or otherwise changed by oral communication of any kind or character. Section 12. Governing Law and Venue. In the event of any dispute regarding the meaning and effect of this Agreement, the laws of the State of California shall apply, and venue shall lie in the Superior Court of the County of San Bernardino, State of California. 11 Section 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. Section 14. Construction. The language in all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning. This Agreement shall not be construed in favor of or against any Party, but shall be construed as if all Parties prepared the Agreement. Section 15. Authority to Execute. The individuals executing this Agreement represent and warrant that they have the authority to execute and enter into this Agreement on behalf of the named Parties and to perform all acts required by this Agreement, and that the consent, approval, or execution of or by any third party is not required to legally bind either Party to the terms and conditions of this Agreement. Section 16. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument and the entire agreement of the Parties hereto. Section 17. Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. Section 18. Waiver. No delay or omission in the exercise of any right or remedy by non - defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Section 19. Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any prior oral or written statements or agreements between Chino, Chino Hills and Developer. Section 20. Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which any be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to judgment. [SIGNATURES FOLLOW ON NEXT PAGE] CITY OF CHINO HILLS Konradt artiam City Manager AD Y, 5 / (Date) Attest: ( 4 Cheryl Balz City Clerk Approved As To Form: Mark D. ensiey City Att ney CITY OF CHINO Matte Ilantyne City Manager dl -0-11 (Date) Attest: Q,�"aL QAr� — Angela obies City Clerk Approved As To Content: Jose Afire Assistant City Manager/Director of Public Works Approved As To Form: Fred Galante City Attorney [SIGNATURES CONTINUED ON NEXT PAGE] "DEVE TURN re) Rusty Turner % Managing Member (Printed name/Title) 10-04-17 (Date) (Signature) (Printed name/Title) (Date)