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HGN Chino Hills (Site Improvement Agreement, Parcel Map 19502) A2018-091Interim RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Chino Hills 14000 City Center Drive Chino Hills, CA 91710 No fee per Government Code § 6103 A2018-091 IMPROVEMENT AGREEMENT PARCEL MAP 19502, Chino Hills Commerce Center THIS AGREEMENT ("Agreement") is made and entered into this April 10, 2018, by and between the CITY OF CHINO HILLS, a general law city and municipal corporation ("CITY") and HGN CHINO HILLS, LLC (" DEVELOPER"). The Parties agree as follows: 1. RECITALS. This Agreement is made with reference to the following facts and objectives: A. DEVELOPER presented CITY with a site plan identified as PARCEL MAP 19502, Chino Hills Commerce Center ("Site Plan"). B. DEVELOPER requested that CITY approve the Site Plan before construction and completion of all improvements including, without limitation, streets, highways, public ways, grading, fences, and public utility facilities which are part of or appurtenant to the subdivision identified on the Site Plan. 2. CONSTRUCTION OF IMPROVEMENTS. A. At its sole cost and expense, DEVELOPER agrees to furnish the equipment, labor and materials necessary to complete the Improvements on the Site Plan set forth in attached Exhibit "A," which is incorporated by reference, and such other improvements required by CITY ordinances and/or the City Council when approving the Site Plan ("Improvements"). All of the Improvements, together with appurtenances, contingencies and engineering costs, are more particularly shown on the improvement plans for the Site Plan. It is understood that the list of Improvements shown on Exhibit A, is only a general designation of the Work and not a binding description thereof. All of the Improvements shall be completed in strict compliance with applicable plans and specifications on file with the CITY's Engineering Department, and any subsequent alterations thereto Page 1 of 10 approved by the CITY's Engineering Department, which alterations in said plans, specifications and standards of Improvements to be performed may be accomplished without first giving prior notice thereof to Surety, and in no event shall such change result in exonerating the Surety's obligations. The Improvements shall be done under the inspection of, and to the satisfaction of the CITY City's Engineer and/or other CITY official as applicable, and shall not be deemed completed until approved and accepted as completed by the CITY. Said acceptance of the Improvement shall also constitute acceptance of any offer of dedication contained herein. B. DEVELOPER further agrees that any and all work to be done in conjunction with the Improvements shall conform to the requirements of the Chino Hills Municipal Code and any other applicable ordinances (including ordinances regulating excavations and fills, e.g., grading regulations) and shall be completed within the period of time described above and prior to the acceptance by or on behalf of the CITY of the Improvements. C. The DEVELOPER hereby agrees that all of the work to be done in conjunction with the Improvements on any CITY street shall be completed in accordance with the terms and provisions of Title 12 of the Chino Hills Municipal Code. D. It is further agreed that the DEVELOPER will at the time from the approval of the Site Plan to the completion and acceptance of the Improvements by the CITY, give good and adequate warning of each and every dangerous condition caused by the construction of said Improvements and will protect the traveling public therefrom. E. Further, once work on an Improvement is commenced, it shall be prosecuted in a diligent and workmanlike manner to completion. 3. ESTIMATED COST OF IMPROVEMENTS. The parties agree that the estimated cost of the Improvements is $ $220,599. 4. COMPLETION. DEVELOPER must complete all Improvements in a good and workmanlike manner within twelve months after recording the Site Plan or within such further time as may be granted by the CITY's City Engineer. Should DEVELOPER fail to complete the Improvements within the time for completion, CITY, at its option, may enter onto DEVELOPER's property to complete the Improvements at DEVELOPER's cost. 5. WARRANTY OF IMPROVEMENT PLANS. DEVELOPER warrants that the plans and specifications for the Improvements comply with the Site Plan approval previously approved by CITY's Planning Commission and the City Council, together with all conditions made a part of such approval(s). DEVELOPER further warrants that the plans and specifications can be relied upon to accomplish the improvement work covered by this Agreement in a good, workmanlike manner and in accordance Page 2 of 10 with accepted construction practices. Should the plans and specifications at any time before final acceptance of the Improvements prove to be inadequate in any respect, DEVELOPER agrees to make such changes deemed necessary by CITY to accomplish Improvement work in a good, workmanlike manner and in accordance with accepted construction practices. DEVELOPER further agrees to make or cause to be made such engineering, soils and other reports as may be required by CITY. 6. CITY NOT LIABLE FOR PLANS AND SPECIFICATIONS. CITY is not an insurer or surety for the design or construction of the Subdivision. And no CITY official, officer, or employee is liable or responsible for any claim arising during construction of the Improvements, unless it can be shown that such person specifically directed that the Improvement be accomplished in a manner contrary to the wishes and desires of DEVELOPER, and DEVELOPER filed a written objection with the CITY Engineer before commencing such work or Improvement. 7. WARRANTY OF WORK. DEVELOPER warrants that the Improvements will be constructed in a manner consistent with CITY's specifications and the highest industry standards. Should any Improvement fail to comply with this warranty or any other provision of this Agreement within one (1) year after CITY's final acceptance, DEVELOPER must, without delay and without cost to CITY, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Improvements. Should DEVELOPER fail to act promptly or in accordance with this requirement or should the exigencies of the case require repairs or replacements to be made before DEVELOPER can be notified, CITY may, at its option, make the necessary repairs or replacements or perform the necessary work and DEVELOPER must pay to CITY the actual cost of such repairs plus fifteen percent (15%) for CITY's administrative overhead costs. This Section is not a waiver of any other right CITY may have for correcting faulty workmanship or defective materials. 8. REPAIRS AND REPLACEMENTS. DEVELOPER must maintain all of the Improvements constructed under this Agreement in a state of good repair until all of the Improvements are completed and accepted by or on behalf of the CITY. Said maintenance shall include, but not be limited to: A. Road and Drainage: Repair of pavement, curbs, gutters, sidewalks, parkways, drainage facilities, and removal of debris from drainage facilities, sweeping, repairing and maintaining in good and safe conditions all streets and street improvements. B. Sewer System: Repair of sewer system, and removal of debris from sewer system, repairing and maintaining in good and safe condition all sewer system improvements. C. Water System: Repair and/or removal of debris from the water system; repairing and maintaining in good and safe condition of the water system improvements. It shall be DEVELOPER's responsibility to initiate this work, but if DEVELOPER should fail to do so, DEVELOPER shall promptly perform such maintenance when notified to do so by the CITY's City Engineer. Upon failure of DEVELOPER to promptly maintain, Page 3 of 10 the CITY may do all necessary work required by this paragraph, the cost thereof being chargeable to DEVELOPER and Surety under this Agreement. Any such repair or replacement must be completed to CITY's City Engineer satisfaction and approval. 9. CITY'S RIGHT OF ENTRY. DEVELOPER grants CITY a license to enter DEVELOPER's property to inspect the Improvements constructed by DEVELOPER and to ensure compliance with this Agreement. 10. PAYMENT FOR INSPECTION COSTS. The DEVELOPER hereby agrees to pay for the inspection of such Improvements as may be required by the City Engineer and/or other City official. 11. NOTICE OF WORK. The DEVELOPER shall give notice to the City Engineer at least 24 hours before beginning any work on the Improvements and shall furnish City Engineer all reasonable facilities for obtaining full information respecting the progress and manner of the Improvements. 12. ALTERATIONS. The DEVELOPER shall perform any changes or alterations in the construction and installation of such Improvements required by the CITY, provided that all such changes or alterations do not exceed ten percent of the original total estimate cost of such Improvements. Said costs to be borne by the DEVELOPER. 13. CONTRACT SECURITY. A. Concurrently with the execution of this Agreement, DEVELOPER must furnish: i. A surety bond in an amount equal to at least one hundred percent (100%) of the estimated cost of improvements as security for the faithful performance of this Agreement; ii. A separate surety bond in an amount equal to at least one hundred percent (100%) of the contract price for said improvements as security for the payment of all persons performing labor and furnishing materials in connection with this Agreement. B. DEVELOPER agrees that the form of the bonds provided by CITY are substantially similar to Government Code §§ 66499.1 and 66499.2. 14. MAINTENANCE BONDS. The bonds referred to in Section 13 will not be released until a surety bond guaranteeing the warranty requirements of Section 7 in the amount of at least ten percent (10%) of the sum shown in Section 3 is filed with CITY. The maintenance bond will be released one (1) year from the date of final acceptance of the Improvements. Page 4 of 10 15. PERFORMANCE BY CITY OR SURETY. Should DEVELOPER fail to prosecute the construction of the Improvements with such diligence as to ensure completion within the time requirements of this Agreement, or in the manner as required by this Agreement, or if DEVELOPER is not carrying out the intent of this Agreement, CITY may serve written notice upon DEVELOPER and the surety on DEVELOPER's faithful performance bond demanding satisfactory compliance with this Agreement. A. Should CITY serve such written notice, • CITY may do any one, or combination of, the following: Serve written notice upon the surety on its faithful performance bond demanding satisfactory compliance with this Agreement. In such event the surety must, within five (5) days, assume control and construct the Improvements as DEVELOPER's successor; ii. CITY may construct the improvements itself, or by contract, at DEVELOPER's expense on a time a materials basis. In such event, CITY may take possession of and utilize in completing improvement construction, materials, appliances, and other property belonging to DEVELOPER as may be on the site of the work without liability to CITY. DEVELOPER's surety will be liable to CITY for any excess cost of damages incurred by CITY. B. Nothing in this Section waives, or serves as a limitation upon, any additional remedy CITY may have under this Agreement or applicable law. 16.SURETY BOND TO INCLUDE LETTER OF CREDIT. The term "surety bond" also includes such other acceptable security, such as letters of credit or cash deposit agreements issued by responsible financial institutions, which are approved by the City Attorney. The term "surety" includes the issuer of any letter of credit or cash deposit agreement, which is acceptable to CITY as security for the performance of this Agreement. Sureties must be admitted to do business in California. 17. BEST MANAGEMENT PRACTICES. DEVELOPER agrees to use best management practices ("BMPs"), as that term is defined under applicable law including, without limitation, the CHMC, in constructing the Improvements anticipated by this Agreement. DEVELOPER's failure to comply with the terms of this Section constitutes a material breach of this Agreement. 18.OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by DEVELOPER under this Agreement are CITY's property. DEVELOPER may retain copies of said documents and materials as desired, but must deliver all original materials to CITY upon CITY's written notice. Page 5 of 10 19.INDEPENDENT CONTRACTOR. CITY and DEVELOPER agree that DEVELOPER will act as an independent contractor and will have control of all work and the manner in which is it performed. DEVELOPER will be free to contract for similar service to be performed for other employers while under contract with CITY. DEVELOPER is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that may appear to give CITY the right to direct DEVELOPER as to the details of doing the work or to exercise a measure of control over the work means that DEVELOPER will follow the direction of CITY as to end results of the work only. 20.CASH CHARGES. DEVELOPER must pay to CITY in cash such fees that are established by ordinance or by the CITY Council in conferring approval or extension of time for the Site Plan. 21.INDEMNIFICATION. A. DEVELOPER indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except if due to the sole negligence or wrongful acts of the CITY. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, DEVELOPER must defend CITY (at CITY's request and with counsel satisfactory to CITY) and indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise, except if due to the sole negligence or wrongful acts of the CITY. B. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. C. DEVELOPER agrees and understands that its violation of any Labor Code provision regarding payment of prevailing wages can result in fines or damages being levied against CITY. DEVELOPER specifically agrees that the indemnification and defense obligations set forth in this Section include payment of any fines, penalties, or damages that might arise out of this Agreement. D. The requirements as to the types and limits of insurance coverage to be maintained by DEVELOPER, and any approval of such insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by DEVELOPER pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. Page 6 of 10 22.INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, DEVELOPER must procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type of Insurance Limits (combined single) Commercial general liability: $2,000,000 Professional Liability $2,000,000 Workers compensation statutory requirement B. Commercial general liability insurance must meet or exceed the requirements of ISO-CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies must be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to CITY. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," DEVELOPER will continue to renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement, and will cover DEVELOPER for all claims made by CITY arising out of any errors or omissions of DEVELOPER, or its officers, employees or agents during the time this Agreement was in effect. D. DEVELOPER must furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." Certificate(s) must reflect that the insurer will provide thirty (30) day notice of any cancellation of coverage. DEVELOPER will require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written Page 7 of 10 notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions. 23. NOTICES. A. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Notice sent by mail will be addressed as follows: The CITY CITY of Chino Hills Attn: City Clerk 14000 City Center Drive Chino Hills, CA 91709 To DEVELOPER HGN Chino Hills, LLC 1 Maritime Plaza, Ste. 1665 San Francisco, CA 94111 B. When addressed in accordance with this paragraph, notices will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery. C. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 24.COMPLIANCE WITH LAW. DEVELOPER will comply with all laws applicable to this Agreement including, without limitation, federal, state, and local laws requiring permitting and licenses. All such compliance will be at DEVELOPER's own cost. 25.PREVAILING WAGES. If required by applicable state law including, without limitation Labor Code § § 1720 (as amended by AB 975 (2001)), 1771, 1774, 1775, and 1776, DEVELOPER must pay its workers prevailing wages. It is the DEVELOPER's responsibility to interpret and implement any prevailing wage requirements and DEVELOPER agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws. In accordance with Labor Code § 1773.2, copies of the prevailing rate of per diem wages are available upon request from CITY's Engineering Division or the website for State of California Prevailing wage determination at http: www.dir.ca.gov/DLSR/PWD. A copy of the prevailing rate of per diem wages must be posted at the job site if DEVELOPER is required to pay prevailing wages. 26. CONSTRUCTION. The language of each part of this Agreement will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party. 27.SEVERABLE. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable Page 8 of 10 and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 28. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 29.WAIVER. Waiver of any provision of this Agreement will not be deemed to constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver. 30. GOVERNING LAW. This Agreement has been made in and will be construed in accordance with the laws of the State of California and exclusive venue for any action involving this Agreement will be in San Bernardino County. 31. AUTHORITY/MODIFICATION. This Agreement is subject to and conditioned upon approval and ratification by the Chino Hills CITY Council. This Agreement is not binding upon CITY until executed by the Mayor. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written agreement. CITY's CITY Manager may execute any such amendment on behalf of CITY. 32. BINDING UPON SUCCESSORS. The terms of this Agreement constitute a burden and benefit upon the Property. Accordingly, this Agreement will be recorded and the term will run with the Property and become binding upon DEVELOPER's heirs, successors and assigns. 33. ENTIRE AGREEMENT. This Agreement constitutes the sole agreement between DEVELOPER and CITY respecting the maintenance of the Property's common areas and correctly sets forth the obligations of DEVELOPER and CITY. There are no other understandings, terms or other agreements expressed or implied, oral or written. Page 9 of 10 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF CHINO HILLS, a ipal corpration. Mayor cJ City Council Approval: 4/10/2018 ATTEST: City Clerk APPROVED AS TO FORM: MARK 1St I ITY ATTORNEY By: ram. Elizabeth M. al i4no, Assistant Cit Attorney DEVELOPER: HGN CHINO HILLS, LLC Dealt k C7t A(16-- v u 4/ield'" • e Page 10 of 10 ACKNOWLEDGMENT 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 validity of that document. State of California County of San Francisco On March 27, 2018 before me, Irene Gunn, Notary Public (insert name and title of the officer) personally appeared Dennis Higgs who proved to me on the basis of satisfactory evidence to be the personfsj whose nameica')15/I subscribed to the within instrument and acknowledged to me thatJle/,stre///hy executed the same in ni.Sibertther authorized capacity(iesj, and that bylis/J f/tir signaturefa'Jon the instrument the person,(4, or the entity upon behalf of which the personfs'Jacted, 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 qattL__, (Seal) r-i-i-411.11Wys++1 IRENE GUNN Notary Public — California Z San Francisco County n Commission # 2219160 i My Comm. Expires Nov 17, 2021 EXHIBIT A PARCEL MAP NUMBER 19502, Chino Hills Commerce Center All improvements marked are included: • Public street improvements including grading, paving, curbs, gutter, sidewalks, traffic control devices, street name signs, street lights, street landscaping, and appurtenances. • Private street or driveway improvements including grading, paving, curbs, gutters, sidewalks, traffic control devices, street name signs, street lighting, landscaping, and appurtenances. • Public sanitary sewers including mains, laterals, and appurtenances. ® Private sanitary sewers including mains, laterals, and appurtenances. • Domestic water supply system, including mains, service laterals, fire hydrants, and appurtenances. ❑ Natural gas supply system including mains, service laterals, and appurtenances. ❑ Electric power distribution system including vaults, conduits, cables, conductors, service laterals, transformers, and appurtenances. ❑ Telephone system including vaults, conduits, cables, conductors, service laterals, and appurtenances. ❑ Cable television system, including vaults, conduits, cables, conductors, service laterals, and appurtenances. • Public storm drains including channels, pipes, inlets, culverts, and appurtenances. • Private storm drains including swales, channels, pipes, inlets, and appurtenances. ❑ Mailboxes. ❑ Lot grading including land clearing, earth moving compaction, import or export of soil, and appurtenances. - i - ❑ Walls including retaining walls, perimeter walls, and appurtenances. ❑ Off-street landscaping including trees, bushes, shrubs, turf, irrigation system, and appurtenances. ❑ Other: Describe work to be completed