HomeMy WebLinkAbout2019-08-13 Item 02 - Attachment 1
Item 2
CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH SUN CHULA VISTA BAYFRONT RV LLC
TO CONSTRUCT SPECIFIED BAYFRONT DEVELOPMENT IMPACT FEE
AND SEWER IMPROVEMENTS
This REIMBURSEMENT AGREEMENT (“Agreement”) is entered into as of this _____
day of ____________, 2019 (the “Effective Date”) by and among the City of Chula Vista, a
chartered municipal corporation (“City”) and SUN CHULA VISTA BAYFRONT RV LLC a a
Michigan Limited Liability Company (“Developer”) (collectively, the “Parties” and, individually,
a “Party”) with reference to the following Recitals:
RECITALS
A. WHEREAS, Developer has secured lease rights to certain real property held by the
San Diego Unified Port District (the “District”) for the development of two hundred and forty-
seven (247) recreational vehicle stalls, together with related amenities, to be located in the Chula
Vista Bayfront Master Plan Area (the “Private Improvements”); and
B. WHEREAS, as part of the consideration for the District to enter into the Lease,
Developer agreed to develop and maintain certain real property located adjacent to the Private
Improvements; and
C. WHEREAS, Developer and the District entered into a Development and
Maintenance Agreement, effective _______________, 2019 (the “Development and Maintenance
Agreement)”; and
D. WHEREAS, Section 4 of the Development and Maintenance Agreement provides
that the Developer shall construct certain roadway improvements, consisting of E Street from Bay
Boulevard to F Street, F Street from Bay Boulevard to E Street, and F Street from E Street to
Gunpowder Point Drive (together the “Project Improvements” or “Project”); and
E. WHEREAS, pursuant to Chula Vista Municipal Code (“CVMC”) Section 3.54.010
(Transportation Development Impact Fees – General Intent), the City Council of the City of Chula
Vista has determined that (i) new development will create adverse impacts on the City’s existing
public facilities, which must be mitigated by the financing and construction of certain
transportation facilities that are the subject of CVMC Chapter 3.54; and (ii) a reasonable means of
financing the impacted transportation facilities is to charge a fee on all developments located
within the following subareas of the City of Chula Vista: the Eastern Area, the Western Area, and
the Bayfront Area, as defined in CVMC Section 3.54.020 (Transportation Development Impact
Fees – Definitions); and
1 City of Chula Vista Agreement No.: \[insert # from City Clerk’s Office\]
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F. WHEREAS, pursuant to CVMC Section 3.54.140 (Transportation Development
Impact Fees – Developer Construction of Facilities), developers may construct or finance
Transportation Facilities, subject to the provisions of CVMC Chapter 3.54 and CVMC Section
2.56.160(H); and
G. WHEREAS, CVMC Section 3.54.150 (Transportation Development Impact Fees –
Procedure for Issuance of Credits or Tender of Reimbursement Offer) establishes certain terms
and conditions for the award of credit or the tender of a reimbursement offer for developer
construction of transportation facilities; and
H. WHEREAS, the Private Improvements are located in the Bayfront Area and will
be subject to payment of the Bayfront Transportation Development Impact Fee (BFDIF) to the
City upon building permit issuance; and
I. WHEREAS, certain portions of the Project Improvements are transportation
facilities of the BFDIF, as identified in CVMC Section 3.54.030 (the “Developer’s BFDIF
Improvements”); and
J. WHEREAS, pursuant to CVMC Section 3.54.110 (Transportation Development
Impact Fees – Authority for Accounting and Expenditures), all BFDIF funds collected shall be
deposited into a Bayfront Transportation Development Impact Fee fund (the “BFDIF Fund”); and
K. WHEREAS, CVMC Section 3.54.080 (Transportation Development Impact Fees –
Purpose and Use of Fee) provides that fees collected pursuant to CVMC Chapter 3.54 shall be
used by the City for the following purposes, in such order and at such time as determined by the
City Council: (i) to pay for such of the Transportation Facilities that the City Council determines
shall be constructed, installed or purchased at that time, or to reimburse the City for Transportation
Facilities funded by the City from other sources; (ii) to reimburse developers who have been
required or permitted by CVMC Section 3.54.140 to construct, install or purchase approved
Transportation Facilities identified in the Engineer’s Reports, in such amounts as the City Council
deems appropriate; and (iii) to pay for costs associated with the administration of the fees; and
L. WHEREAS, Developer’s BFDIF Improvements are eligible for a combination of
credits against Developer’s future BFDIF obligation and cash reimbursements from the BFDIF
Fund; and
M. WHEREAS, upon contract award for Developer’s BFDIF Improvements,
Developer will be eligible for credits against a future BFDIF obligation pursuant to CVMC Section
3.54.150 (Transportation Development Impact Fees – Procedure for Issuance of Credits or Tender
of Reimbursement Offer) in an amount not to exceed Developer’s BFDIF obligation for the Private
Improvements, estimated to total approximately $1.3 million (“Developer’s BFDIF Credits”); and
1 City of Chula Vista Agreement No.: \[insert # from City Clerk’s Office\]
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N. WHEREAS, in the future, the City will have sufficient funds in the BFDIF Fund to
reimburse Developer for the design and construction of Developer’s BFDIF Improvements, less
Developer’s BFDIF Credits (the “Developer’s BFDIF Reimbursement”); and
O. WHEREAS, pursuant to CVMC Section 13.14.030.B (Connection to Public Sewer
– Fee), any person desiring to connect, directly or indirectly, any parcel or any building thereon to
any public sewer which has been constructed at no cost to the parcel to be connected shall pay the
one-time required fee for sewer connection to the City, with all revenue derived from such fees to
be deposited into the Sewer Income Fund; and
P. WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues
collected under CVMC Section 13.14.030.B shall be deposited into the “Sewer Income Fund” and
may be used, in the discretion of the City Council (as defined below) and pursuant to a written
contract, to reimburse any person who has constructed sewer facilities to the extent, as determined
by the City Council, that such sewer facilities have benefited other properties; and
Q. WHEREAS, certain in-road sewer facilities included in the Project Improvements
(the “Developer’s Sewer Improvements”) are eligible for reimbursement from the Sewer Income
Fund; and
R. WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse
Developer for the design and construction of Developer’s Sewer Improvements; and
S. WHEREAS, certain portions of the Project Improvements are neither transportation
facilities of the BFDIF, nor eligible for reimbursement from the Sewer Income Fund (the
“Developer’s Public Improvement Contribution”); and
T. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing and constructing the Project
Improvements, excluding Developer’s Public Improvement Contribution.
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals, the covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties
hereby acknowledge, City and Developer agree as follows:
ARTICLE I. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall
have the following meanings:
1.1. Acceptance. “Acceptance” means all of the Project Improvement acceptance in
accordance with the following procedures. Upon completion of Project Improvements in
accordance with the City’s written policies, Developer shall notify the City by sending the
1 City of Chula Vista Agreement No.: \[insert # from City Clerk’s Office\]
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City Notice of Completion. Within ten (10) Working Days of the delivery of the Notice
of Completion, the City shall conduct a final inspection to confirm that the Project
Improvements covered by the Notice of Completion are complete (“Final Site
Inspection”), the City shall within ten (10) Working Days thereafter send an Acceptance
Letter (as defined below) or a reasonably specific list of any deficiencies. If the City
determines during the Final Site Inspection that the work is complete, in its reasonable
discretion, the City shall deliver a letter of acceptance to Developer within ten (10)
Working Days of the approval confirming that the Project Improvements are complete and
accepted by the City (the “Acceptance Letter”). Notwithstanding Developer’s receipt of
an Acceptance Letter, Developer shall provide warranties pursuant to Article XI and
maintenance pursuant to Article ##, commencing upon City issuance of the Acceptance
Letter.
1.2. Agreement. “Agreement” means this Reimbursement Agreement between the City and the
Developer. The term “Agreement” shall include any amendment to the Agreement
properly approved and executed pursuant to the terms of this Agreement.
1.3. Approved Drawings and Specifications. “Approved Drawings and Specifications” means
the drawings and specifications for the Project Improvements as approved and permitted
by the City.
1.4. BFDIF. “BFDIF” has the meaning given to such term in the Recitals.
1.5. BFDIF Fund. “BFDIF Fund” has the meaning given to such term in the Recitals.
1.6. BFDIF Fund Eligible Expenses. “BFDIF Fund Eligible Expenses” means costs for which
the City shall reimburse Developer from the BFDIF Fund for the design, development, and
construction of the Developer’s BFDIF Improvements, not to exceed the Estimated Cost
of BFDIF Improvements.
1.7. CEQA. “CEQA” means the California Environmental Quality Act.
1.8. City. “City” means the City of Chula Vista. Unless specifically provided otherwise,
whenever this Agreement requires an action or approval by City, that action or approval
shall be performed by the City representative designated by the Agreement.
1.9. City Attorney. “City Attorney means that position established pursuant to and in
accordance with CVMC Chapter 2.11.
1.10. City Council. “City Council” means the governing body of the City.
1.11. City Engineer. “City Engineer” means that position established pursuant to and in
accordance with CVMC Chapter 2.06.
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1.12. City Manager. “City Manager” means the City Manager of City or his or her designee.
1.13. City’s Project Administration Costs. “City’s Project Administration Costs” means the
charges that the City incurs to: (i) review and approve the plans and specifications for the
Project Improvements and (ii) inspect the Project Improvements during construction, until
completion and Acceptance of the Project Improvements.
1.14. Competitive Bid or Solicitation Process. “Competitive Bid or Solicitation Process” has the
meaning given to such term in Section 6.1.
1.15. Contested Charge. “Contested Charge” has the meaning given to such term in Section
9.1.8.3.
1.16. Contract Documents. “Contract Documents” includes, but is not limited to: the prime
construction contract(s), prime construction contract(s) exhibits and addenda,
subcontract(s), subcontract(s) exhibits and addenda, and any of the following: notice
inviting bids, instructions to bidders, bid (including documentation accompanying bid and
any post-bid documentation submitted prior to notice of award), the bonds, the general
conditions, permits from City or other agencies, the special provisions, the plans, standard
plans, standard specifications, reference specifications, the Approved Drawings and
Specifications, and all modifications issued after the execution of the subcontract(s), in
each case, in connection with the Project.
1.17. Development and Maintenance Agreement. “Development and Maintenance Agreement”
shall have the meaning given such term in the Recitals.
1.18. Cutoff Date. “Cutoff Date” means one (1) year from the date of Acceptance of the Project
Improvements.
1.19. CVMC. “CVMC” has the meaning given to such term in the Recitals.
1.20. Defective Work. “Defective Work” means all work, material, or equipment that is
unsatisfactory, faulty, incomplete, or does not substantially conform to the Approved
Drawings and Specifications.
1.21. Design and Construction Standards. “Design and Construction Standards” means the
edition of the City-adopted Design and Construction Standards for public works projects
that is in effect when the Approved Drawings and Specifications are approved by the City
for purposes of the bids and which is available in the City’s Department of Engineering
and Capital Projects and on the City’s website.
1.22. Developer. “Developer” has the meaning given to such term in the preamble.
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1.23. Developer’s BFDIF Credits. “Developer’s BFDIF Credits” has the meaning given to such
term in the Recitals.
1.24. Developer’s BFDIF Improvements. “Developer’s BFDIF Improvements” has the meaning
given to such term in the Recitals.
1.25. Developer’s BFDIF Reimbursement. “Developer’s BFDIF Reimbursement” has the
meaning given to such term in the Recitals.
1.26. Developer Parties. “Developer Parties” shall mean the Developer, the General Contractor,
all Subcontractors and their respective directors, officers, employees, agents, and
contractors.
1.27. Developer’s Public Improvement Contribution. “Developer’s Public Improvement
Contribution” has the meaning given to such term in the Recitals.
1.28. Developer’s Sewer Improvements. “Developer’s Sewer Improvements” has the meaning
given to such term in the Recitals.
1.29. Director of Development Services. “Director of Development Services” means the
Director of Development Services of City or his or her designee.
1.30. District. “District” has the meaning given to such term in the Recitals.
1.31. Estimated Cost of BFDIF Improvements. “Estimated Cost of BFDIF Improvements”
means the total cost of the Developer’s BFDIF Improvements, as estimated by preliminary
engineering studies to total $4,665,000, as shown in Exhibit A, attached hereto. As
Estimated Cost of BFDIF Improvements is not initially the result of competitive bids for
the actual design and construction, it is subject to change during the competitive bid process
as well as during the design and construction phases, subject to the approval of the Parties.
1.32. Estimated Cost of Developer’s Public Improvement Contribution. “Estimated Cost of
Developer’s Public Improvement Contribution” means the total cost of the Developer’s
Public Improvement Contribution, as estimated by preliminary engineering studies to total
$1,040,000, as shown in Exhibit A, attached hereto. As Estimated Cost of Developer’s
Public Improvement Contribution is not initially the result of competitive bids for the actual
design and construction, it is subject to change during the competitive bid process as well
as during the design and construction phases, subject to the approval of the Parties.
1.33. Estimated Cost of Project Improvements. “Estimated Cost of Project Improvements”
means the sum of the Estimated Cost of BFDIF Improvements, the Estimated Cost of
Sewer Improvements, and the Estimated Cost of Developer’s Public Improvement
Contribution.
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1.34. Estimated Cost of Sewer Improvements. “Estimated Cost of Sewer Improvements” means
the total cost of the Developer’s Sewer Improvements, as estimated by preliminary
engineering studies to total $390,000, as shown in Exhibit A, attached hereto. As
Estimated Cost of Sewer Improvements is not initially the result of competitive bids for
the actual design and construction, it is subject to change during the competitive bid process
as well as during the design and construction phases, subject to the approval of the Parties.
1.35. Effective Date. “Effective Date” has the meaning given to such term in the preamble.
1.36. Final Accounting Date. “Final Accounting Date” has the meaning given to such term in
Section 9.1.7.
1.37. General Contractor. “General Contractor” means a party or parties under any contract with
the Developer to perform the work or provide supplies for the Project.
1.38. Greenbook. “Greenbook” means the 2012 edition of the Standard Specifications for Public
Works Construction.
1.39. Hazardous Materials. “Hazardous Materials” means hazardous waste or hazardous
substances as defined in any federal, state, or local statue, ordinance, rule, or regulation
applicable to the Property, including, without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (Title 42) United States
Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 united
States Code sections 6901-6992k), the Carpenter Presley-Tanner Hazardous Substance
Account Act (Health and Safety Code sections 25300-25395.15), and the Hazardous Waste
Control Law (Health and Safety Code sections 25100-25250.25). “Hazardous Materials”
shall also include asbestos or asbestos containing materials, radon gas, and petroleum or
petroleum fractions, whether or not defined as hazardous waste or hazardous substance in
any such statute, ordinance, rule, or regulation.
1.40. Holiday. “Holiday” means the City-observed holidays listed below (if any holiday listed
falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If
the holiday should fall on a Sunday, then the Sunday and the following Monday are both
legal holidays):
Holiday Observed On
New Year’s Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veteran’s Day November 11
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Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25
1.41. Illegal Discharge. “Illegal Discharge” has the meaning given to such term in Section
14.1.3.
1.42. Landcape Improvements. “Landscape Improvements” means all landscaping within the
BFDIF facility right-of-way and all erosion control landscaping associated with cut and fill
slopes for the BFDIF facility.
1.43. Maximum BFDIF Reimbursement Amount. “Maximum BFDIF Reimbursement Amount”
means the lesser of the Estimated Cost of BFDIF Improvements, as may be amended from
time to time, less Developer’s BFDIF Credits, or the amount calculated during the Final
Accounting.
1.44. Maximum Reimbursement Amount. “Maximum Reimbursement Amount” means the sum
of the Maximum BFDIF Reimbursement Amount and the Maximum Sewer
Reimbursement Amount.
1.45. Maximum Sewer Reimbursement Amount. “Maximum Sewer Reimbursement Amount”
means the lesser of the Estimated Cost of Sewer Improvements, as may be amended from
time to time, or the amount calculated during the Final Accounting.
1.46. Non-Reimbursable Costs. “Non-Reimbursable Costs” means costs that shall not be
eligible for reimbursement under this Agreement, including but not limited to: Loss During
Delivery, Costs Incurred Due to Negligence, Unapproved Costs, Excess Costs, Non-
Project Shared Costs, and Developer’s Public Improvement Contribution as defined in
Section 9.1.8.2.
1.47. Notice of Completion. “Notice of Completion” means the standard document recorded by
the City upon completion of a public works project in accordance with City’s standard and
customary practices.
1.48. Party. “Party” has the meaning given to such term in the preamble.
1.49. Payment Date. “Payment Date” means twenty (20) Working Days following the date on
which Developer submits a complete Reimbursement Request (as reasonably determined
by the Director of Development Services).
1.50. Project. “Project” has the meaning given to such term in the Recitals.
1.51. Project Improvements. “Project Improvements” has the meaning given to such term in the
Recitals.
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1.52. Project Site. “Project Site” means the location of the Project for the purposes of pre-
construction services and construction.
1.53. Reimbursable Costs. “Reimbursable Costs” means costs of Developer’s BFDIF
Improvements and Developer’s Sewer Improvements that have been expended by
Developer and approved by the City through approval procedures described in the
Agreement, less the Developer’s BFDIF Credits.
1.54. Reimbursement Request. “Reimbursement Request” means a reimbursement request
package submitted to the City containing the items listed in Section 9.1.3.1.
1.55. Sewer Income Fund. “Sewer Income Fund” means the fund designated as the “sewer
income fund” with respect to the Developer’s Sewer Improvements pursuant to and in
accordance with CVMC Section 3.16.010.
1.56. Sewer Income Fund Eligible Expenses. “Sewer Income Fund Eligible Expenses” means
costs for which the City shall reimburse Developer from the Sewer Income Fund for the
design, development, and construction of the Developer’s Sewer Improvements, not to
exceed the Estimated Cost of Sewer Improvements.
1.57. Standard Specifications. “Standard Specifications” means the Greenbook, the local
standard special provisions referenced in the Approved Drawings and Specifications, and
any amendments thereto.
1.58. Subcontractor. “Subcontractor” means a party or parties under contract with Developer to
perform the work or provide supplies for the Project Improvements.
1.59. SWPPP. “SWPPP” has the meaning given to such term in Section 8.1.3.
1.60. Transportation Facilities. “Transportation Facilities” has the meaning given to such term
in CVMC Section 3.54.080.
1.61. Working Day(s). “Working Day(s)” means Monday through Friday, excluding Holidays.
ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above-listed Recitals are true and correct and are hereby incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Project Improvements. Except as expressly provided in this Agreement, Developer shall
cause the design and construction of the Project Improvements in accordance with the
Development and Maintenance Agreement.
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2.2. Complete and Functional Improvements. Developer shall provide complete and functional
Project Improvements meeting the standards identified herein.
2.3. Maintain Until Acceptance. Following the completion of the Project Improvements,
Developer shall maintain the Project Improvements until Acceptance of the Project
Improvements by City.
2.4. Maintain After Acceptance. Following the completion and Acceptance of the Landscape
Improvements by the City, Developer shall maintain the Landscape Improvements for a
period of one (1) year.
2.5. City Payment. City shall reimburse Developer, subject to the terms and conditions herein,
for the BFDIF Fund Eligible Expenses of design and construction of the Developer’s
BFDIF Improvements, less Developer’s BFDIF Credits. Further, City shall reimburse
Developer, subject to the terms and conditions herein, for the Sewer Income Fund Eligible
Expenses of design and construction of the Developer’s Sewer Improvements. City
acknowledges and agrees that all of the Estimated Cost of BFDIF Improvements identified
in Exhibit A, less Developer’s BFDIF Credits, are BFDIF Fund Eligible Expenses and the
Estimated Cost of Sewer Improvements identified in Exhibit A are Sewer Income Fund
Eligible Expenses. City further acknowledges that reimbursement to Developer pursuant
to this Agreement shall be considered a funding priority, as BFDIF funds become
available.
ARTICLE III. DURATION OF AGREEMENT
3.1. Term of Agreement. This Agreement shall be effective on the Effective Date following
City Council approval by resolution, and the term shall extend until such time as all
executory terms have been completed or it is early terminated according to the termination
provisions herein.
ARTICLE IV. PROJECT COSTS
4.1. Estimated Cost of BFDIF Improvements. The Estimated Cost of the BFDIF Improvements
is $4,665,000 as shown in Exhibit A, attached hereto.
4.2. Estimated Cost of Sewer Improvements. The Estimated Cost of the Sewer Improvements
is $390,000, as shown in Exhibit A, attached hereto.
4.3. Adjustment to Estimated Cost. Estimated Cost of BFDIF Improvements and Estimated
Cost of Sewer Improvements are subject to change by the methods identified below and
those established elsewhere in this Agreement.
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4.3.1. Revisions to the Estimated Cost of BFDIF Improvements. In the event that the City
Manager reviews Developer’s BFDIF Improvements and determines, in his/her
sole discretion, that the cost of design and construction will exceed the then current
Estimated Cost of BFDIF Improvements, the Estimated Cost of BFDIF
Improvements shall be increased to reflect the revised estimate accordingly.
4.3.2. Revisions to the Estimated Cost of Sewer Improvements. In the event that the City
Manager reviews Developer’s Sewer Improvements and determine, in his/her sole
discretion, s that the cost of design and construction will exceed the then current
Estimated Cost of Sewer Improvements, the Estimated Cost of Sewer
Improvements shall be increased to reflect the revised estimate accordingly.
4.3.3. Adjustments Based on Other Cost Increases. The Estimated Cost of BFDIF
Improvements and the Estimated Cost of Sewer Improvements may be increased
due to: (i) acts of God, acts of any governmental authority, the elements, war,
litigation, shortages of material, labor strikes, inflation, later commonly accepted
or adopted higher standards and specifications of construction, concealed or
unknown conditions encountered in the completion of the Developer’s BFDIF
Improvements and/or Developer’s Sewer Improvements, or other cause beyond
Developer’s reasonable control; (ii) actual bids received being greater than
estimated; or (iii) other factors not the result of unreasonable conduct by Developer.
The Estimated Cost of BFDIF Improvements and/or the Estimated Cost of Sewer
Improvements may be increased by the amount of such increases, respectively,
subject to approval by the City Manager.
4.3.4. Failure to Obtain Approval of Increase. In any case where City Manager approval
is required for an increase in the Estimated Cost of BFDIF Improvements and such
approval is not obtained, Developer shall have no obligation to incur costs in excess
of the Estimated Cost of BFDIF Improvements. In such case, the Developer’s
BFDIF Improvements shall be revised through deductive changes approved by the
City Manager, such that the Developer’s BFDIF Improvements, as revised, can be
completed for the Estimated Cost of BFDIF Improvements. In any case where City
Manager approval is required for an increase in the Estimated Cost of Sewer
Improvements and such approval is not obtained, Developer shall have no
obligation to incur costs in excess of the Estimated Cost of Sewer Improvements.
In such case, the Developer’s Sewer Improvements shall be revised through
deductive changes approved by the City Manager, such that the Developer’s Sewer
Improvements, as revised, can be completed for the Estimated Cost of Sewer
Improvements.
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4.4. Notification of Increased Costs. If, at any time, Developer reasonably determines that the
amount expended on the Developer’s BFDIF Improvements or the Developer’s Sewer
Improvements will exceed the Estimated Cost of BFDIF Improvements or the Estimated
Cost of Sewer Improvements, Developer shall as soon as reasonably possible, not more
than ten (10) Working Days from reasonably determining that the potential increase will
occur, notify the City in writing. This written notification shall include an itemized cost
estimate and a list of recommended revisions (e.g., deductive changes) which Developer
believes will bring the construction cost to within the Estimated Cost of BFDIF
Improvements and/or the Estimated Cost of Sewer Improvements. The City may either:
(i) approve an increase in the Estimated Cost of BFDIF Improvements or the Estimated
Cost of Sewer Improvements; or (ii) delineate a project which may be constructed for the
Estimated Cost of BFDIF Improvements and Estimated Cost of Sewer Improvements; or
(iii) any combination of (i) and (ii).
ARTICLE V. PROJECT SCHEDULE
5.1. Project Schedule. Developer shall perform and complete the work for the Project
Improvements within thirty (30) months of the Effective Date.
5.2. Unavoidable Delay. Each Party shall be entitled to an extension of the date of any
performance required of such Party under this Agreement if the failure of the Party to duly
perform was because of a cause beyond the Party’s reasonable control.
ARTICLE VI. COMPETITIVE BIDDING AND EQUAL OPPORTUNITY
6.1. Compliance. Developer shall bid and award contracts to complete Developer’s BFDIF
Improvements and Developer’s Sewer Improvements in accordance with all applicable
public contract laws, rules, and regulations, including but not limited to those set forth in
the City of Chula Vista Charter and Municipal Code, including CVMC §2.56.160(H).
6.1.1. Proof of Advertising. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide the City with proof that the Developer solicited
competitive bids from the General Contractor and/or Subcontractors, as applicable,
in accordance with CVMC §2.56.160(H)(2)(c) (Developer-Performed Public
Works – Bid and Award – Competitive Solicitation of Bids).
6.1.2. Prevailing Wage. Developer shall advertise the Project Improvements as requiring
the payment of Prevailing Wage and include all provisions in the advertisement as
required by the California Department of Industrial Relations.
6.2. Bid Opening and Award of Contract. In the case of any Competitive Bid or Solicitation
Process, Developer shall provide City with a copy of the tabulation of competitive bid
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results with respect to each contract and subcontract, as applicable. Contract(s) for the
construction of Developer’s BFDIF Improvements and Developer’s Sewer Improvements
shall be awarded by Developer pursuant to CVMC §2.56.160(H)(2)(d). In the event that
the best qualified contractor’s bid, combined with a reasonable amount for contingencies,
exceeds the Estimated Cost of BFDIF Improvements and/or the Estimated Cost of Sewer
Improvements, the increase in the costs must be approved by City Manager pursuant to
Section 4.3 prior to awarding the contract. In the event the City Manager does not approve
the increased cost, this Agreement, at the City’s option but subject to the next sentence,
may be terminated upon prior written notice thereof to Developer of not less than twenty
(20) days and the Developer’s BFDIF Improvements and Developer’s Sewer
Improvements may be rebid and/or redesigned. If the City notifies the Developer that it
intends to exercise the termination option, then Developer shall have the right to pay the
amount in excess of the Estimated Cost of BFDIF Improvements and/or the Estimated Cost
of Sewer Improvements (together or separately, the “Excess Cost”), in which case the City
shall no longer have the right to terminate this Agreement. Developer acknowledges and
agrees that payment of any Excess Cost shall not be a Reimbursable Cost under this
Agreement. In the event that the Agreement is terminated pursuant to this Section 6.2, the
Developer’s design, development, and/or construction costs for the Developer’s BFDIF
Improvements and the Developer’s design, development, and/or construction costs for the
Developer’s Sewer Improvements will be reimbursed to Developer from BFDIF Fund and
the Sewer Income Fund, respectively. City shall reimburse Developer for the actual
Reimbursable Costs expended by Developer prior to termination of this Agreement.
Developer shall provide City with copies of all executed contracts awarded in accordance
with this Section 6.2.
6.3. Equal Employment Opportunities and Equal Opportunity Contracting.
6.3.1. Equal Employment Opportunity Nondiscrimination. Developer shall not
discriminate against any employee or applicant for employment on any basis
prohibited by law. Developer shall provide equal opportunity in all employment
practices. Developer shall instruct its consultants, subconsultants, General
Contractor, and Subcontractors, to comply with this provision. Nothing in this
subsection 6.3.1 shall be interpreted to hold Developer liable for any discriminatory
practice of its General Contractor, Subcontractors, or any other party.
6.3.2. Equal Employment Opportunity Certification. Developer shall require all bidders
to submit signed Equal Employment Opportunity Certifications, on forms approved
by the City, with their bid packages.
6.3.3. Equal Opportunity Contracting Nondiscrimination. Developer shall not
discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual
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orientation, age, or disability in the solicitation, selection, hiring, or treatment of
bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer
shall provide equal opportunity for bidders, contractors, the General Contractor,
and Subcontractors to participate in contracting and subcontracting opportunities.
Developer understands and agrees that violation of this subsection 6.3.3 shall be
considered a material breach of this Agreement and may result in termination of
this Agreement, debarment, or other sanctions. The language in this subsection
6.3.3 shall be inserted in contracts between Developer, the General Contractor, any
Subcontractors, vendors, and suppliers awarded in accordance with Section 6.2.
ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care. Developer agrees that the services provided as part of this Agreement
shall be performed in accordance with the standards customarily adhered to by experienced
and competent professional architectural, engineering, landscape architecture, and
construction firms (as applicable) using the degree of care and skill ordinarily exercised by
reputable professionals practicing in the same field of service in the State of California.
7.2. Compliance with all Laws. Developer shall comply and ensure compliance in all material
aspects by any of its General Contractors, Subcontractors, employees, and agents with all
laws, including but not limited to:
7.2.1. All local, City, County, State, and Federal laws, codes and regulations, ordinances
and policies, including, but not limited to, City permits, hazardous material permits,
site safety, state and local Building Codes, stormwater regulations, etc.
7.3. Compliance with Design and Construction Standards. Developer shall comply and ensure
compliance in all material aspects by the Developer Parties with the most current editions
of Design and Construction Standards.
7.3.1. Standard Specifications. Developer shall comply and ensure compliance in all
material aspects by the Developer Parties with the most current editions of the
following reference specifications when designing and constructing the Project
Improvements, including:
7.3.1.1. The Greenbook, including the Regional and any local Supplement
Amendments.
7.3.2. City Standards. Developer’s and Developer Parties’ services shall be provided in
conformance with the standards of practice established by City. This includes
amendments and revisions of these standards as adopted by City. The standards of
practice established by City include, but are not limited to, the following:
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7.3.2.1. The Standard Specifications and the Approved Drawings and
Specifications.
7.4. Changes to Standards. Developer shall not be required to comply, nor to cause Developer
Parties to comply, with any design standard or any construction standard or any
amendment, update, supplement or other modification to the Design and Construction
Standards after the date of the approval of the Approved Drawings and Specifications for
purposes of the bids.
7.5. City Approval Not a Waiver of Obligations. Where approval by the City, the City
Manager, or other representatives of City is required, it is understood to be general approval
only and does not relieve Developer or Developer Parties of their responsibility for
complying with all applicable laws, codes, and good consulting, design, or construction
practices. An approval by City under this Agreement is not an assumption of liability by
the City and shall not cause City to become an insurer or surety of work associated with
such approval.
ARTICLE VIII. CONSTRUCTION
8.1. Site Safety, Security, and Compliance. Developer shall be responsible for site safety,
security, and compliance with all related laws and regulations.
8.1.1. Persons. Developer shall be fully responsible for the safety and security of its
officers, agents, and employees authorized by Developer to access the Project site.
8.1.2. Other. Developer is responsible for Project site, materials, equipment, and all other
incidentals until the completed Project has been accepted by the City pursuant to
Article X.
8.1.3. Environment. Developer shall comply with all environmental laws and regulations,
including the Clean Air Act of 1970, the Clean Water Act, Executive Order number
11738, and the Stormwater Management and Discharge Control Ordinance No. 0-
17988 and any and all Best Management Practice (BMP) guidelines and pollution
elimination requirements as may be established by an enforcement official.
Furthermore, Developer shall prepare and incorporate into the Construction
Drawings a Stormwater Pollution Prevention Plan (SWPPP) to be implemented by
Developer during Project construction and maintenance. Where applicable, the
SWPPP shall comply with both the California Regional Water Quality Control
Board Statewide General Construction Storm Water permit and National Pollution
Discharge Elimination System permit requirements and shall be in conformance
with the City of Chula Vista BMP Design Manual and CVMC Chapter 14.20
(Storm Water Management and Discharge Control).
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8.2. Access to Project Site. City officers, agents, and employees with Project-related business
shall have the right to enter the Project site at any time for Project related purposes;
provided that such person complies with all written applicable security and safety
procedures provided by Developer to City.
8.3. Public Right-of-Way. All work, including materials testing, special testing, and surveying
to be conducted in the Public right-of-way shall be coordinated with the City.
8.3.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all Federal
and State laws and regulations, and all written and publicly available City standards
and regulations while working in the public right-of-way, including, but not limited
to, utilizing proper traffic control and obtaining necessary permits.
8.4. Traffic Control. Developer shall comply with all traffic control requirements for Project,
including, if applicable, all traffic control plans and/or notes.
8.5. Maintenance. Developer shall maintain and be responsible for the Project Improvements
and the Project site until Acceptance, including ongoing erosion prevention measures.
Upon Acceptance of the Project, City shall be responsible for maintenance of the Project
Improvements.
ARTICLE IX. REIMBURSEMENT/PAYMENT OF COSTS AND EXPENSES
9.1. Payment of Costs Associated with Project
9.1.1. BFDIF Reimbursement Amount. The maximum amount of reimbursement for
Developer’s BFDIF Improvements shall not exceed the Maximum BFDIF
Reimbursement Amount. Neither Developer nor the General Contractor nor any
Subcontractor, nor any combination thereof, shall be entitled to payment from the
BFDIF Fund in excess of the Maximum BFDIF Reimbursement Amount.
9.1.2. Sewer Reimbursement Amount. The maximum amount of reimbursement for
Developer’s Sewer Improvements shall not exceed the Maximum Sewer
Reimbursement Amount. Neither Developer nor the General Contractor nor any
Subcontractor, nor any combination thereof, shall be entitled to payment from the
Sewer Income Fund in excess of the Maximum Sewer Reimbursement Amount.
9.1.3. Reimbursement Amount. The maximum amount of reimbursement for Project shall
not exceed the Maximum Reimbursement Amount. Neither Developer nor
Subcontractor shall be entitled to payment in excess of the Maximum
Reimbursement Amount.
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9.1.3.1. Reductions to the Maximum Reimbursement Amount. City’s Project
Administration Costs included in the Estimated Cost of BFDIF
Improvements and the Estimated Cost of Sewer Improvements, as shown
in Exhibit A, that are not charged to Developer shall be deducted from the
Maximum Reimbursement Amount. Any anticipated increase in the total
City’s Project Administration Costs identified in Exhibit A shall be
handled in accordance with Section 4.3.
9.1.4. Funds for Payment of Costs/Expenses. The source of funds for the payment of
costs/expenses associated with Project shall be limited to those listed below. No
other City fund, or monies held by, owed to, or in trust for the City, shall be used
by the City or sought to be collected by Developer, its employees, agents, General
Contractor, or Subcontractors other than those identified in Section 9.1.24.1.
9.1.4.1. Funds for Project. Funds for payment of costs/expenses for Project shall
be limited to the BFDIF Fund and the Sewer Income Fund.
9.1.5. Prerequisites to Payment.
9.1.5.1. Reimbursement Request. Prior to reimbursement of any expenses,
Developer shall provide the City with a Reimbursement Request
containing the following:
a. Invoices. Developer shall provide the Director of Development
Services all invoices for Reimbursable Costs associated with
Project, not previously paid by the City, immediately upon receipt
thereof.
b. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days after such payment.
c. Lien Releases/Stop Notices. Developer shall provide the Director
of Development Services with statutory lien/stop notice releases
associated with all work performed or supplies provided in a form
satisfactory to the City Attorney.
d. Certification of Payment. Developer shall provide the Director of
Development Services with a written certification that all trades and
soft costs for which they are seeking reimbursement have been paid.
e. Certification of Prevailing Wage Compliance. Developer shall
provide the Director of Development Services with a written
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certification of compliance with all applicable Prevailing Wage laws
and regulations.
f. Acknowledgement of Subcontractors. Developer shall provide the
Director of Development Services with a letter from each firm (e.g.
civil, survey, and geotechnical) acknowledging that eligible soft
costs included in the relevant invoices have been paid.
g. Time Sheets. Developer shall provide the Director of Development
Services with time sheets from the construction manager to justify
the project management costs.
h. Graphics. Developer shall provide the Director of Development
Services with a graphic depicting the areas within the Project for
which the Reimbursement Request is being submitted.
i. Reimbursement Request Summary Report. Developer shall provide
the Director of Development Services with a Reimbursement
Request Summary Report, summarizing the expenses submitted for
reimbursement, including proposed designation of each expense as
either “BFDIF Eligible”, “Sewer Eligible”, or “Non-Reimbursable”.
j. Other Documents. Developer shall provide the Director of
Development Services with any other documents that may be
needed to evaluate the eligibility of the expense as determined
necessary by the Director of Development Services in his/her sole
discretion.
City shall not have an obligation to make payment to Developer unless
and until Developer provides the Director of Development Services with
an accurate and complete Reimbursement Request containing all of the
above and such Reimbursement Request is approved by the Director of
Development Services as provided below.
9.1.5.2. Inspection. The Project shall be subject to City inspection as provided in
section 2-11 of the Greenbook. Developer shall ensure that all persons
and entities providing work or services for the Project comply with the
inspection requirements provided in section 2-11 of the Greenbook.
9.1.5.3. Prevailing Wage Compliance. Developer shall ensure that all persons and
entities providing work or services for the Project comply with Prevailing
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Wage requirements as established by the California Department of
Industrial Relations, as applicable
9.1.5.4. City Approval. The Director of Development Services shall promptly
review each Reimbursement Request and the supporting documentation.
If the Director of Development Services finds that any such payment
request is incomplete, improper, or otherwise not suitable for
reimbursement, the Director of Development Services shall inform
Developer in writing within fifteen (15) Working Days after receipt
thereof of the reasons for his finding. Developer shall have the right to
respond to this finding by submitting further documentation after receipt
of said findings. The Director of Development Services shall review any
further documentation received from Developer in support of the payment
request and inform Developer of his/her approval or denial of the payment
request, or his/her request for additional information or documentation,
within ten (10) Working Days after receipt of the supplemental
documentation.
9.1.6. Time of Sewer Income Fund Payment. After Developer has obtained City’s
approval pursuant to 9.1.5, City shall reimburse Developer for the Reimbursable
Costs associated with each Reimbursement Request for Sewer Income Fund
Eligible Expenses by the Payment Date. If the Payment Date falls on a weekend
or Holiday, the Payment Date shall be extended to the next Working Day.
9.1.6.1. Additional Sewer Costs. Any costs that may accrue, such as interest on
late payments to Developer’s General Contractors, Subcontractors, or
suppliers, shall not be the obligation of the City if the City has not received
an accurate and complete Reimbursement Request. Such additional
charges shall be the obligation of the Developer and are not eligible for
reimbursement.
9.1.7. Time of BFDIF Fund Payment. After Developer has obtained City’s approval
pursuant to 9.1.5, City shall reimburse Developer for the Reimbursable Costs
associated with each Reimbursement Request for BFDIF Fund Eligible Expenses
at such time as the BFDIF Fund has sufficient monies appropriated for such
expense, but in no case earlier than the Payment Date. If the Payment Date falls on
a weekend or Holiday, the Payment Date shall be extended to the next Working
Day.
9.1.7.1. Additional BFDIF Costs. Any costs that may accrue, such as interest on
late payments to Developer’s General Contractors, Subcontractors, or
suppliers, shall not be the obligation of the City if the City has not received
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an accurate and complete Reimbursement Request and/or the BFDIF
Fund does not have sufficient monies appropriated to provide the BFDIF
Fund payment at that time.
9.1.8. Reimbursement Amount per Reimbursement Request. The City shall pay Developer
approved amounts in the Reimbursement Request, less any Non-Reimbursable
Costs and Contested Charges (as defined below) pursuant to the timeframes
established in 9.1.6 and 9.1.7.
9.1.8.1. Retention Withholding. The prime contract and subcontracts for the
Project may provide for retention withholding from each payment to the
General Contractor or the Subcontractor, as applicable, until Acceptance.
a. Payment and Invoicing for Retention Withholding. Developer shall
not pay the General Contractor and the Subcontractors the amounts
withheld as retention until (1) forty-five (45) calendar days from
recordation of the Notice of Completion, and (2) confirmation has
been submitted to the Director of Development Services by
Developer that no Stop Notices or Mechanic’s Liens have been filed
and not released with respect to the Project and the following work
has been completed:
i. All Project improvements have been installed.
ii. As-builts have been submitted to the City.
iii. Form PWE106 is completed.
iv. The final punch list is complete.
Where a stop payment notice or mechanic’s lien has been filed following
the recordation of the Notice of Completion, Developer shall continue to
withhold the amount in controversy until a fully executed release of stop
payment notice or mechanic’s lien or a bond releasing the stop payment
notice or mechanic’s lien has been filed and a conformed copy delivered
to the City. Notwithstanding anything in this Agreement to the contrary,
Developer shall not be required to withhold any funds from the General
Contractor or any Subcontractor to the extent doing so would violate any
applicable law.
9.1.8.2. Non-Reimbursable Costs. The following costs/expenses shall not be
eligible for reimbursement under this Agreement.
a. Loss During Delivery. Developer shall assign risk of loss related to
the delivery of project supplies, materials, and equipment to shipper
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as free on board (FOB) destination. Developer acknowledges and
agrees that any loss to Project supplies, materials, or equipment prior
to delivery shall not be a Reimbursable Cost.
b. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any cost or expenditures incurred due to negligent
acts, omissions, or willful misconduct of Developer or the any
Developer Parties.
c. Unapproved Costs. Developer shall not be entitled to
reimbursement for any cost or expenditure that has not been
approved by the City in the manner required by this Agreement.
d. Excess Costs. Developer acknowledges and agrees that any Excess
Cost (as defined in section 6.2 of this Agreement) shall not be a
Reimbursable Cost.
e. Non-Project Shared Costs. The Parties acknowledge that Developer
may share certain costs (e.g. mobilization, traffic control) for the
Project with the Private Improvements. Developer acknowledges
and agrees that any shared project costs that are not directly
attributable to or reasonably apportioned to the Project, as
determined by the City, shall not be a Reimbursable Cost.
f. Developer’s Public Improvement Contribution. The Parties
acknowledge that the Project Improvements include Developer’s
Public Improvement Contribution, the costs of which shall not be a
Reimbursable Cost.
9.1.8.3. Contested Charges. In the event that the City contests any charge on an
Reimbursement Request (a “Contested Charge”), the City shall provide
Developer a written statement of the Contested Charges, the reason that
the charges are contested, and a proposed resolution.
a. Appeal to City Manager. Developer may appeal the City’s
determination that certain costs are not reimbursable. The appeal
must be received within twenty (20) Working Days of City’s
determination or prior to the Payment Date for the Reimbursement
Request in which the Contested Charges are contained, whichever
comes first. During the appeal period, and as long as the charges
remain disputed, Developer shall proceed with the work, and the
City shall compensate Developer for the undisputed amounts. If,
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following the appeal, the City Manager determines that any
previously unpaid amounts are eligible for reimbursement, such
amounts shall be included in the next payment to Developer.
9.1.9. Cutoff for Submission of Invoices. Developer shall submit its final Reimbursement
Request not later than the Cutoff Date. Any Reimbursement Requests submitted
after the Cutoff Date shall not be reviewed or included as a Reimbursable Cost.
The final payment by the City for the Project will be made only after Developer has
submitted all documentation reasonably necessary to substantiate the cost of
construction and completing the Project Improvements associated with that phase,
lien and stop payment notice free, in accordance with the Plans. Final inspection
and sign-off by the City’s inspectors with associated mechanic’s lien releases (or
bonds releasing contested liens) shall be sufficient evidence of the lien free
completion of the Improvements.
9.1.10. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting to the City in order to determine the cost of design, engineering,
construction, and related work thereto to complete the Developer’s BFDIF
Improvements and the Developer’s Sewer Improvements. Developer shall also
submit all supporting information reasonably necessary to document expenditures
on the Developer’s BFDIF Improvements and Developer’s Sewer Improvements,
including specific details on the costs and work attributable to Developer’s BFDIF
Improvements and Developer’s Sewer Improvements, including third-party
invoices, billings, and receipts for construction surveying, soil testing, blue
printing, actual construction costs, and similar expenses. All expenses shall be
designated as either “BFDIF Eligible”, “Sewer Eligible”, or “Non-Reimbursable”.
9.1.10.1. True-up Payments. Following a Final Accounting, the City shall
determine whether the actual payments made to Developer equal the
audited approved expenditures. In the event that the amount of the
approved expenditures exceeds the amount of the actual payments, the
City shall make a true-up payment to Developer for the difference;
however, in no event shall the true-up payment cause the total amount
paid per phase to exceed the Maximum Reimbursement Amount. If the
Final Accounting shows that the amount of actual payments to Developer
exceeds the amount of the approved expenditures, Developer shall remit
or cause the remittance of the difference to the City within twenty (20)
Working Days of a notice of deficiency.
ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION
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10.1. No Waiver. Developer shall perform and complete the work in strict accordance with the
Contract Documents, as reasonably determined by the City Engineer and the Director of
Development Services. Neither recommendation of any progress payment or acceptance
of work, nor any payment by City to Developer under this Agreement, nor any use or
occupancy of the Improvements or any part thereof by the City, nor any act of acceptance
by the City, nor any failure to act, nor any review of a shop drawing or sample submittal,
will constitute an acceptance of work, which is not substantially in accordance with the
Contract Documents.
ARTICLE XI. WARRANTIES
11.1. Enforcement of Warranties. Developer shall enforce for the City's benefit all warranties
provided in the Contract Documents and any other implicit or explicit warranties or
guarantees required or implied by law.
11.1.1. Materials and Workmanship. Developer shall guarantee, and shall require all
Developer Parties to guarantee, all work on the Project against defective
workmanship and materials furnished for the Project for a period of one (1) year
from the date of Acceptance.
11.1.2. New Materials and Equipment. Developer shall warrant and guarantee, and shall
require all Developer Parties to warrant and guarantee to City that all materials and
equipment incorporated into the Project are new unless otherwise specified.
11.1.3. Design, Construction, and Other Defects. Developer shall warrant and guarantee,
and shall require all Developer Parties to warrant and guarantee to City that all work
is in accordance with the Contract Documents and is not defective in any way in
design, construction, or otherwise.
11.2. Term of Warranties. Unless otherwise specified or provided by law, warranties shall
extend for a term of one (1) year from the date of Acceptance.
ARTICLE XII. DEFECTIVE WORK
12.1. Correction, Removal, or Replacement. If, within the designated warranty period, or such
additional period per applicable law or regulation, the City determines the Project contains
defective work (“Defective Work”), Developer shall promptly and in accordance with the
City’s written instructions and within the reasonable time limits stated therein, either
correct, repair, or replace the Defective Work, or if it has been rejected by City, remove it
from the site and replace it with non-defective and conforming work.
12.2. City’s Right to Correct. If circumstances warrant, including but not limited to an
emergency or Developer’s failure to comply with its obligations in Section 12.1, City may
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correct, remove, or replace the Defective Work. In such circumstances, Developer or its
General Contractors or Subcontractors, as applicable, shall not recover costs associated
with the Defective Work.
12.3. Non-Reimbursable Costs. All costs incurred by Developer and the Developer Parties to
remedy defects are Non-Reimbursable Costs. If the City has already reimbursed Developer
or the Developer Parties for the defective work, City is entitled to an appropriate decrease
in Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against
Developer’s bond, if Developer or the Developer Parties have been paid in full, until the
defects are remedied.
12.4. Extension of Warranty. When Defective Work, or damage therefrom, has been corrected,
removed, or replaced during the warranty period, the one (1) year, or relevant warranty
period, will be extended for an additional time period equal to that of the initial warranty
period, from the date of the satisfactory completion of the correction, removal, or
replacement.
12.5. No Limitation on Other Remedies. Exercise of the remedies for defects pursuant to this
Article shall not limit the remedies City may pursue under this Agreement or law.
12.6. Disputes. If Developer and City are unable to reach agreement on disputed work, City may
direct Developer to proceed with the work and compensate Developer for undisputed
amounts. Payment of disputed amounts shall be as later determined in accordance with
9.1.5.2(c). Developer shall maintain and keep all records relating to disputed work for a
period of three (3) years in accordance with Article XV.
ARTICLE XIII. SECURITY FOR CONSTRUCTION
13.1. Bond. The Developer shall provide a payment bond and a performance bond for the
construction of the Project. The City shall be named as a co-obligee of the bonds. The
bonds shall be maintained until such time as the Project is complete and Accepted by the
City.
13.2. Insolvency or Bankruptcy. If the surety on the above-mentioned bond is declared bankrupt
or becomes insolvent or its right to do business is terminated in any state where any part of
the Project is located, Developer shall within five (5) Working Days thereafter substitute
or require the substitution of another bond and surety, acceptable to the City.
13.3. Calling the Bond. Developer acknowledges and agrees that if Developer’s construction of
the Improvements has not been commenced, has not been completed in accordance with
the Project Schedule, has not been performed in accordance with the Approved Drawings
and Specifications, or if the Developer has failed to cure any defects within the time
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specified with a Notice of Defect, the City may use the security referenced in 13.1 above
to complete the Improvements. This remedy is not a limitation on remedies of the City and
is in addition to any other remedy that the City may have at law or in equity.
ARTICLE XIV. INDEMNITY AND DUTY TO DEFEND
14.1. Defense, Indemnity, and Hold Harmless.
14.1.1. General Requirement. Developer shall defend, indemnify, protect, and hold
harmless the City, its elected and appointed officers, agents and employees, from
and against any and all claims, demands, causes of action, costs (including
reasonable attorney’s fees), expenses, liability, loss, cost, damage or injury, in law
or equity, to property, including takings claims, or persons, including wrongful
death, foreseeable or unforeseeable, in any manner arising out of or incident to any
alleged passive or active negligence or willful misconduct of Developer, its
officials, officers, contractors, Subcontractor(s), agents, or employees arising out
of or in connection with the Project or this Agreement.
This indemnity provision does not include any claims, damages, liability, costs and
expenses (including without limitations, attorneys fees) arising from the sole
negligence, active negligence or willful misconduct of the City, its officers, or
employees. Also covered is liability arising from, connected with, caused by or
claimed to be caused by the active or passive negligent acts or omissions of the
City, its agents, officers, or employees which may be in combination with the active
or passive negligent acts or omissions of Developer, the Developer Parties or third
parties.
14.1.2. Illegal Discharge to Storm Drains. Developer shall defend, indemnify, protect, and
hold harmless City, its agents, officers, and employees, from and against all claims
asserted, or liability established for damages or injuries to any person or property
resulting from a discharge to public storm drains in violation of applicable laws to
the extent arising out of the construction of the Improvements (an “Illegal
Discharge”) caused by any action or failure of Developer, its officials, officers,
contractors, Subcontractor(s), agents, or employees to take reasonable measures to
prevent an Illegal Discharge. Developer shall also be responsible for payment of
any fines or penalties assessed against City for an Illegal Discharge. Developer’s
duty to indemnify and hold harmless shall not include any claims or liability arising
from the established sole negligence or willful misconduct of City, its agents or
employees.
14.1.3. Costs of Defense and Award. Included in the obligations in sections 14.1.1 through
14.1.3 above is Developer’s obligation to defend, at Developer’s own cost, expense
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and risk, any and all suits, actions, or other legal proceedings that may be brought or
instituted against the City, its directors, officials, officers, employees, agents, and/or
volunteers, subject to the limitations in sections 14.1.1 and 14.1.2. Developer shall
pay and satisfy any judgement, award, or decree that may be rendered against City or
its directors, officials, officers, employees, agents, and/or volunteers, for any and all
related legal expense and costs incurred by each of them to the extent of Developer’s
actual determined negligence, subject to the limitations in Sections 14.1.1 and 14.1.2.
The City may, in their sole and absolute discretion, participate in the defense of any
and all suits, actions, or other legal proceedings that may be brought or instituted
against the City, its directors, officials, officers, employees, agents, and/or volunteers,
but the Developer shall have no obligation to reimburse the City for any costs of
defense incurred by the City, including, without limitation, reimbursement for
attorneys’ fees, experts’ fees and other costs. The City’s participation shall not relieve
the Developer of any of its obligations under this Article XIV.
14.1.4. Insurance Proceeds. Developer’s obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials, officers,
employees, agents, and/or volunteers.
14.1.5. No Use of Security. The security identified in Article XIII shall not be used to
satisfy the obligations of Developer under this Article XIV.
14.1.6. Declarations. Developer’s obligations under Article XIV shall not be limited by
any prior or subsequent declaration by Developer.
14.1.7. Enforcement of Costs. Developer agrees to pay any and all costs, including
attorneys’ fees, City incurs enforcing the indemnity and defense provisions set forth
in Article XIV.
14.1.8. Survival. Developer’s obligations under Article XIV shall survive the expiration
and/or termination of this Agreement.
15. ARTICLE XV. INSURANCE
15.1. Insurance Requirements. Developer agrees to have and maintain the policies set forth in
Exhibit B, which is attached hereto and incorporated herein. All policies, endorsements,
certificates, and/or binders shall be subject to approval by the City as to form and content.
These requirements are subject to amendment or waiver only if so approved in writing by
City. A lapse in any required insurance coverage during this Agreement shall be a breach
of this Agreement.
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ARTICLE XVI. RECORDS AND AUDITS
16.1. Retention of Records. Developer shall maintain data and records related to this Agreement
for a period of not less than three (3) years following receipt of final payment under this
Agreement.
16.2. Audit of Records. At any time during normal business hours and as often as the City deems
necessary within five (5) years after Acceptance of the Project Improvement at issue,
Developer and any or all of Developer’s General Contractors and Subcontractors shall
make available to the City for examination at reasonable locations within the City/County
of San Diego all of the data and records with respect to all matters covered by this
Agreement. Developer and all General Contractors and Subcontractors will permit the City
to make audits of all invoices, materials, payrolls, records of personnel, and other data and
media relating to all matters covered by this Agreement. If records are not made available
within the City/County of San Diego, then Developer shall pay all the City's travel related
costs to audit the records associated with this Agreement at the location where the records
are maintained. Such costs will not be Reimbursable Costs.
16.2.1. Costs. Developer and Developer’s agents shall allow City to audit and examine
books, records, documents, and any and all evidence and accounting procedures
and practices that City determines are necessary to discover and verify all costs of
whatever nature, which are claimed to have been incurred, anticipated to be
incurred, or for which a claim for additional compensation or for Extra Work have
been submitted under this Agreement.
ARTICLE XVII. MISCELLANEOUS PROVISIONS
17.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They
shall be deemed served (i) immediately, upon personal delivery; (ii) the next Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next
Working Day; or (iii) three (3) Working Days after deposit in the United States mail,
certified or registered mail, return receipt requested, first-class postage prepaid. Until
notice of a change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
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Chula Vista, California 91910
If to Developer: SUN CHULA VISTA BAYFRONT RV LLC
C/O Sun Communities, Inc.
Attention: Chief Operating Officer
27777 Franklin Road, Suite 200
Southfield, Michigan 48034
With a copy to: Jaffe Raitt Heuer & Weiss, PC
Attn: Mark Krysinski
27777 Franklin Road, Suite 2500
Southfield, Michigan 48034
17.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
17.3. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Parties regarding the subject matter hereof. No prior or contemporaneous oral
or written representations, agreements, understandings and/or statements regarding its
subject matter shall have any force or effect. This Agreement is not intended to supersede
or amend any other agreement between the parties unless expressly noted. However, all
previous written agreements, remain in full force and effect except to the extent they
conflict with this Agreement.
17.4. Severability. If any provision of this Agreement or its particular application is held invalid
or unenforceable, the remaining provisions of this Agreement, and their application, shall
remain in full force and effect, unless a party's consideration materially fails as a result.
17.5. Recordation. The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
17.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from
the fact that a Party or its attorney drafted this Agreement. It shall be conclusively
presumed that all Parties participated equally in drafting this Agreement.
17.7. Authority. Each Party warrants and represents that it has legal authority and capacity to
enter into this Agreement, and that it has taken all necessary action to authorize its entry
into this Agreement. Each individual signing this Agreement on behalf of an entity
warrants that his/her principal has duly authorized him/her to sign this Agreement on its
behalf so as to bind his/her principal.
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17.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or
in part, except by written instrument duly executed and acknowledged by the Parties hereto,
their successors or assigns.
17.9. Governing Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action arising under or relating to
this Agreement shall be brought only in the federal or state courts located in San Diego
County, State of California, and if applicable, the City of Chula Vista, or as close thereto
as possible. Venue for this Agreement shall be the City of San Diego.
17.10. Administrative Claims. Requirements and Procedures. No suit or arbitration shall be
brought arising out of this Agreement against the City unless a claim has first been
presented in writing and filed with the City and acted upon by the City in accordance with
the procedures set forth in Chapter 1.34 of the CVMC, as same may from time to time be
amended (the provisions of which are incorporated by this reference as if fully set forth
herein), and such policies and procedures used by City in the implementation of same.
17.11. Non-liability of City Officials and Employees. No member, official, employee or
consultant of the City shall be personally liable to Developer in the event of any default
or breach by City, or for any amount which may become due to Developer, or on any
obligations under the terms of this Agreement.
17.12. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be the original and all of which shall constitute one and the same document.
\[End of page. Signature page follows this page.\]
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IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and
year first set forth above.
CITY DEVELOPER
CITY OF CHULA VISTA, a California SUN CHULA VISTA BAYFRONT RV LLC,
charter city and municipal corporation a Michigan limited liability company
By: Sun Communities Operating Limited
Partnership, a Michigan limited partnership, its
Sole Member
By:
By: Sun Communities, Inc., its General
Partner
Gary Halbert, City Manager
By:
Name:_______________________________
ATTEST:
Title:________________________________
By:
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Googins, City Attorney
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EXHIBIT A – ESTIMATED COST
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EXHIBIT B – INSURANCE REQUIREMENTS
Developer shall procure and maintain for the duration of the Agreement, and for two years thereafter,
insurance against claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the work hereunder by the Developer, his agents, representatives,
employees, or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01
covering CGL on an “occurrence” basis, including products and completed operations,
property damage, bodily injury and personal & advertising injury with limits no less than
$5,000,000 per occurrence.
2. Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto),
with limits no less than $5,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory
Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident
for bodily injury or disease.
4. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils)
coverage form, with limits equal to the completed value of the project and no coinsurance
penalty provisions.
5. Surety Bonds as described below.
6. Professional Liability (if Design/Build), with limits no less than $2,000,000 per occurrence
or claim, and $2,000,000 policy aggregate.
7.
Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions
(if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim,
and $2,000,000 policy aggregate.
If the Devloper maintains broader coverage and/or higher limits than the minimums shown above, the
City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the
Devloper. Any available insurance proceeds in excess of the specified minimum limits of insurance
and coverage shall be available to the City.
Self-Insured Retentions
Self-insured retentions are included as a part of Developer’s overall insurance program and as shown
in the attached summary of its insurance. Developer agrees that it will maintain a per occurrence self-
insured retention amount of no more than two hundred and fifty thousand dollars ($250,000.00). The
policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied
by either the named insured or City. Developer agrees that it will maintain its insurance program in a
manner commercially similar to th attached summary.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations
performed by or on behalf of the Devloper including materials, parts, or equipment furnished
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in connection with such work or operations and automobiles owned, leased, hired, or borrowed
by or on behalf of the Devloper. General liability coverage can be provided in the form of an
endorsement to the Devloper’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85
or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions
used).
2. For any claims related to this project, the Devloper’s insurance coverage shall be primary
insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers,
officials, employees, and volunteers. Any insurance or self-insurance maintained by the City,
its officers, officials, employees, or volunteers shall be excess of the Devloper’s insurance and
shall not contribute with it.
3. Each insurance policy required by this clause shall provide that coverage shall not be canceled,
except with notice to the City.
Builder’s Risk (Course of Construction) Insurance
Devloper may submit evidence of Builder’s Risk insurance in the form of Course of Construction
coverage. Such coverage shall name the City as a loss payee as their interest may appear.
If the project does not involve new or major reconstruction, at the option of the City, an Installation
Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that
provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing
buildings, structures, processes, machinery and equipment. The Property Installation Floater shall
provide property damage coverage for any building, structure, machinery or equipment damaged,
impaired, broken, or destroyed during the performance of the Work, including during transit,
installation, and testing at the City’s site.
Claims Made Policies – (If at all possible avoid and require occurrence type CGL policies)
If any coverage required is written on a claims-made coverage form:
1. The retroactive date must be shown, and this date must be before the execution date of the
contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5)
years after completion of contract work.
3. If coverage is cancelled or non-renewed, and not replaced with another claims-made policy
form with a retroactive date prior to the contract effective, or start of work date, the Devloper
must purchase extended reporting period coverage for a minimum of five (5) years after
completion of contract work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M.
Best rating of no less than A: VII, unless otherwise acceptable to the City.
Waiver of Subrogation
Devloper hereby agrees to waive rights of subrogation which any insurer of Devloper may
acquire from Devloper by virtue of the payment of any loss. Developer agrees to cause its General
Contractor to waive rights of subrogation which any insurer of General Contractor may acquire
from General Contractor by virtue of the payment of any loss. Devloper agrees to obtain any
endorsement, and cause its General Contractor to obtain any endorsement, that may be necessary to
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affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a
waiver of subrogation in favor of the City for all work performed by the Devloper, its General
Contractor, Subscontactors, employees, and agents.
Verification of Coverage
Devloper shall furnish the City with original Certificates of Insurance including all required
amendatory endorsements (or copies of the applicable policy language effecting coverage required by
this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy
endorsements to City before work begins. However, failure to obtain the required documents prior to
the work beginning shall not waive the Devloper’s obligation to provide them. The City reserves the
right to require complete, certified copies of all required insurance policies, including endorsements,
required by these specifications, at any time.
General Contractor and Subcontractors
Devloper shall require and verify that its General Contractor and Subcontractors maintain insurance
meeting all requirements stated herein, and Devloper shall ensure that City is an additional insured on
insurance required from the General Contractor and Subcontractors. For CGL coverage, the General
Contractor and Subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Surety Bonds
Devloper shall provide the following Surety Bonds:
1. Performance Bond
2. Payment Bond
3. Maintenance Bond
The Payment Bond and the Performance Bond shall be in a sum equal to the Estimated Cost. If the
Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If
the warranty period specified in the contract is for longer than one year a Maintenance Bond equal to
10% of the contract price is required. Bonds shall be duly executed by a responsible corporate surety,
authorized to issue such bonds in the State of California and secured through an authorized agent with
an office in California.
City reserves the right to modify these requirements, including limits, based including limits, based on
the nature of the risk, prior experience, insurer, coverage, or other circumstances.
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