HomeMy WebLinkAboutITEM DISTRIBUTED AFTER AGENDA DISTRIBUTION - ITEM 1010. FIRST AMENDMENT TO THE DISPOSITION AND DEVELOPMENT
AGREEMENT WITH LEGACY VILLAS, LLC (DEVELOPER) FOR PARCEL 2A
Approval is requested for the First Amendment to the Disposition and
Development Agreement (DDA) between the City and Legacy Villas, LLC
(Developer, affiliated with The Irvine Company) which will accelerate payment
by the Developer of the Backbone Infrastructure Obligation in the amount of
$15,300,644 and modify the Developer's obligation for construction of Backbone
Infrastructure.
Recommendation:
Approve the First Amendment to the DDA and the Infrastructure Construction
and Reimbursement Agreement attached thereto, sub'ect to such non -
substantive the City_ Attorney and Ct
Manager, and authorize the City Manager to do the following:
1. Execute the First Amendment to the DDA with Legacy Villas, LLC; and
2. Execute the Infrastructure Construction and Reimbursement Agreement
(Attachment No. 25 to the DDA as amended) with the Irvine Community
Development Company, LLC;
3. Take such other actions as are necessary to implement those
agreements, consistent with terms thereof.
FIRST AMENDMENT TO TUSTIN LEGACY
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR PARCEL 2A
This FIRST AMENDMENT TO TUSTIN LEGACY DISPOSITION AND DEVELOPMENT
AGREEMENT FOR PARCEL 2A (this "First Amendment") is entered into as of June 4,
2013 (the "First Amendment Effective Date") by and among the CITY OF TUSTIN (as
more fully defined in Section 1.4.1 of the Original DDA (defined below), "City") and
LEGACY VILLAS LLC, a Delaware limited liability company (as more fully defined in
Section 1.4.2 of the Original DDA, the "Developer"). The City and the Developer are
sometimes referred to in this First Amendment individually as a "Party" and collectively as
the "Parties." The Parties agree as follows:
RECITALS
A. The City and Developer entered into that certain Tustin Legacy Disposition and
Development Agreement for Parcel 2A dated as of November 6, 2012 (the "Original DDA")
pursuant to which, among other things, the City agreed to sell, and Developer agreed to
purchase the "Property" as defined therein, including the real property defined therein as the
Parcel and Developer and the City agreed to a schedule of performance and a scope of
development for the Project, as defined therein, to be constructed by Developer upon the
Parcel. Initially capitalized terms not defined herein shall have the respective meanings
assigned to such terms in the Original DDA.
B. The City and Developer desire to amend the Original DDA in order to, among
other things: (i) modify the timing of the obligation of Developer to make the Project Fair
Share Contribution and (ii) modify the definition of Developer Backbone Improvements, each
as set forth below. The Original DDA as amended by this First Amendment is referred to
herein as the "Agreement."
AGREEMENT
NOW THEREFORE, in consideration of the foregoing Recitals, which are hereby
incorporated in the operative provisions of this First Amendment by this reference, and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties further agree as follows:
1. Modifications to Attachment No. 1 (Glossary of Defined Terms).
(a) The following are deleted from Attachment No. 1 to the Original DDA (Glossary
of Defined Terms):
""On -Parcel Building Permits" shall have the meaning set forth in Section 8.1.4."
""Barranca Improvements" shall have the meaning set forth in Section 9.2.2(a)."
(b) The definition of "Construction Period Commencement Date" set forth on
Attachment No. 1 to the Original DDA (Glossary of Defined Terms) is hereby
deleted and replaced with the following:
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""Construction Period Commencement Date" shall mean the earlier of (a) the first
anniversary of the Close of Escrow or (b) the date on which the City issues to
Developer all building permits for the construction of the portion of the Project to be
located on the Parcel."
(c) The following definitions are hereby added to Attachment No. 1 to the Original
DDA (Glossary of Defined Terms):
`"`Administrative DA Amendment" means that certain First Amendment to
Development Agreement 2012-001 in form and substance approved by the City
Manager in his governmental capacity and as further described in Section 20 of the
First Amendment."
`"`Director" shall mean the City's Director of Public Works and any designee of said
City Director of Public Works."
""l+irst Amendment" shall mean the First Amendment to Tustin Legacy Disposition
and Development Agreement for Parcel 2A entered into as of June 4, 2013, by and
between Developer and the City."
`"`IRWD Reimbursable Facilities" shall have the meaning set forth in the
Reimbursement Agreement."
`"`License Agreement" shall have the meaning set forth in Section 8.1.4 of the
Original Agreement (as such section is amended by the First Amendment)"
`"`Settlement Agreement" shall mean that certain Settlement Agreement and Release
entered into as of December 21, 2012, among the City and the Tustin Public Financing
Authority, on the one hand, and KeyBank, N.A., U.S. Bank, N.A., J.F. Shea Co., Inc.,
Shea Homes Limited Partnership, Shea Properties 11, LLC, Shea Properties LLC,
Roseville Land Holdings LLC, Vantis, LLC and Tustin Legacy Community Partners,
LLC, on the other hand."
""Sewer Improvements" shall have the meaning set forth in the Reimbursement
Agreement."
`"`Sewer Plans" means the plans and specifications for the sewer within Warner
Avenue, Park Avenue and the Parcel, entitled "Capital Sewer Improvements, Planning
Area 2A -Tustin Legacy, Tract No. 17404, Lots 29, 30, 38 and 39, Project No. 4329,
IRWD Code 5910," prepared by Fuscoe Engineering Inc. at the direction of
Developer."
""Warner Avenue Street & Median Improvements" means the following
infrastructure improvements for the segment of Warner Avenue between Legacy Road
and Tustin Ranch Road to be constructed by or on behalf of the City: landscape
median, roadway paving, curb and gutter for landscape median and roadway borders,
and traffic signal upgrade at intersection of Warner Avenue and Tustin Ranch Road,
which improvements are referenced on the "Plans for Street and Domestic Water
Improvements — Warner Avenue from Legacy Road to Tustin Ranch Road," CIP No.
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70202, IRWD Code 5724, prepared by RBF Consulting."
2. :Modification to Section 4.1 of the Original DDA. The first paragraph of Section 4.1
of the Original DDA is hereby deleted in its entirety and replaced with the following:
"4.1 Conveyance of Property. Subject to the terms and conditions set forth
in this Agreement, including the satisfaction of the Closing Conditions set forth
in Section 7 or elsewhere in this Agreement, the City agrees to sell to the
Developer and the Developer agrees to purchase from the City the Parcel,
together with all existing improvements, if any, presently located on the Parcel,
all rights, claims (other than claims under insurance policies maintained by or
for the benefit of the City) and appurtenances pertaining to the Parcel or such
improvements and all permits, licenses, approvals and authorizations issued by
any Governmental Authority in connection with the Parcel (collectively referred
to in this Agreement as the "Property'), subject to all Permitted Exceptions.
Notwithstanding the foregoing: (A) the City is not hereby transferring, assigning
or conveying any rights in or to (i) any of the "Tustin Released Claims" or the
"Released Claims" as defined in the Settlement Agreement, (ii) the rights
granted to the City under Section 6.4.1 of the Settlement Agreement or (iii) the
obligations of the City under Section 6.4.2 of the Settlement Agreement, and
(B)"•
3. Modification to Section 4.3.3 of the Original DDA. Section 4.3.3 of the Original
DDA is hereby deleted in its entirety and replaced with the following:
"4.3.3 Payment at Close of Escrow. No later than one (1) Business Day prior
to the Close of Escrow, the Developer shall deposit with Escrow Holder an
amount (the "Developer Closing Payment") which shall be equal to the sum of
the following: (i) the Purchase Price less the Purchase Price Deposit, plus (ii)
the entire amount of the Project Fair Share Contribution, plus (iii) such
additional amount as is necessary to cover all outstanding City Transaction
Expenses and all closing costs to be paid by the Developer pursuant to Section
7.4.1(b) and (c) and Section 7.4.4, as adjusted for any net credits or debits to
the City for closing costs and/or prorations in accordance with Section 7.4.1(a)
and (c) and Section 7.4.4."
4. Modifications to Section 4.5.2(c) of the Original DDA. Section 4.5.2 of the Original
DDA is hereby deleted in its entirety and replaced with the following:
"4.5.2 Environmental Condition of the Property; Restrictions. The City
makes no representation or warranty as to the environmental condition of the
Property, the Navy's obligations with respect to the environmental condition of
the Property or the adequacy or accuracy of any environmental report that has
been rendered. Developer acknowledges and agrees that (i) there may be some
residual contamination on the Property as a result of Navy historic activities;
and (ii) the Navy has agreed to accept certain limited responsibility for any
contamination it caused, including any contamination discovered after transfer
from the Navy, in accordance with existing Governmental Requirements
including the National Defense Authorization Act For Fiscal Year 1993 as
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amended (Public Law No. 102-434) Section 330 and Section 120(h) of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. § 9620(h)."
5. Modification to Section 7.2.1 of the Original DDA.
(a) Section 7.2.1(a)(x) of the Original DDA is hereby deleted and replaced with the
following:
"(x) the Reimbursement Agreement in the form attached to the DDA as
Attachment 25 and the License Agreement attached thereto"
(b) Section 7.2.1(f) of the Original DDA is hereby deleted and replaced with the
following:
"(f) Permits. The City shall have approved the rough grading permits for the
development of the Project."
6. Modification to Section 7.2.2 of the Original DDA.
(a) Section 7.2.2(a) of the Original DDA is hereby deleted and replaced with the
following:
"(a) Developer Closing Payment. Not later than one (1) Business Day prior to
the Close of Escrow, the Developer shall deliver to Escrow (i) the Developer
Closing Payment (including, for avoidance of doubt, (x) the Purchase Price less
the Purchase Price Deposit plus (y) the entirety of the Project Fair Share
Contribution) and (ii) any other costs explicitly set forth in this Agreement as
costs to be paid by Developer at the Close of Escrow."
(b) Section 7.2.2(b)(v) of the Original DDA is hereby deleted and replaced with the
following:
"(v) the Reimbursement Agreement in the form attached to the DDA as
Attachment 25 and the License Agreement attached thereto, each executed by
ICDC.
7. Modification to Section 7.4.5(a) of the Original DDA. Section 7.4.5(a) of the
Original DDA is hereby deleted and replaced with the following:
"(a) Funds. Debit or credit all matters addressed in Section 7.4.1 and prorate all
matters addressed in Section 7.4.4 and disburse to the City the Purchase Price
and the Project Fair Share Contribution (as adjusted by the foregoing debits,
credits and proration) deposited with Escrow Holder by the Developer."
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S. Modification to Section 8.1.4 of the Original DDA.
"8.1.4 Developer Backbone Improvements. Developer and City acknowledge
and agree that, in connection with Developer's development of the Project,
Developer shall cause ICDC to construct the Developer Backbone
Improvements and certain Horizontal Improvements, including the IRWD
Reimbursable Facilities. The City has negotiated with ICDC and Developer has
caused ICDC to negotiate with the City (a) a reimbursement agreement in the
form attached hereto as Attachment 25, with respect to the Developer Backbone
Improvements including certain rights and obligations of the parties with respect
to the IRWD Reimbursable Facilities (the "Reimbursement Agreement") and
(b) a License Agreement providing access for construction of the Developer
Backbone Improvements and the IRWD Reimbursable Facilities on the Public
Parcels and certain additional access rights as described therein, in the form
attached as an exhibit to the Reimbursement Agreement (the "License
Agreement"). The execution and delivery of the License Agreement and the
Reimbursement Agreement by ICDC and the City shall be a Closing Condition
for the benefit of both Developer and the City. Upon execution of the License
Agreement and Reimbursement Agreement by City and ICDC and subject to the
terms of Section 8.5.2 below, Developer shall be responsible for causing ICDC
to Complete all of the Improvements upon the Public Parcels which are the
responsibility of Developer pursuant to this Agreement, including the Developer
Backbone Improvements and the IRWD Reimbursable Facilities, and
Completion of such Improvements shall be a Condition Precedent to issuance of
a Certificate of Compliance by the City. The City acknowledges that Developer
intends to retain ICDC to carry out Developer's construction obligations under
this Agreement with respect to the Improvements to be located on the Public
Parcels and that ICDC, rather than Developer, shall act as the general contractor
with respect to such Improvements that are to be located on the Public Parcels.
The Parties agree that the obligations of Developer with respect to construction
of the Developer Backbone Improvements shall be satisfied by the performance
by ICDC of its obligations under the Reimbursement Agreement and the
Acceptance by the City of such Improvements under the terms of that
agreement. Accordingly, for the term of the Reimbursement Agreement and
provided that ICDC is not in default thereunder, the Reimbursement Agreement
shall govern the construction of the Developer Backbone Improvements. The
initial estimate for the cost of construction of the Developer Backbone
Improvements is shown on Attachment 21C to this Agreement."
9. Modification to Section 8.5.2 of the Original DDA. Section 8.5.2 of the Original
DDA is hereby deleted and replaced with the following:
8.5.2 Project's Fair Share Contribution. The fair share of the Tustin
Legacy Backbone Infrastructure Program to be contributed by the Developer
with respect to the Project shall be Fifteen Million Three Hundred Thousand
Six Hundred Forty -Four Dollars ($15,300,644) (the "Project Fair Share
Contribution") and notwithstanding any other provision of this Agreement
shall be payable by Developer in full to the City at Close of Escrow. The
payment of the Project Fair Share Contribution at Close of Escrow shall be a
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condition to Close of Escrow for the benefit of the City. Upon its receipt of
the Project Fair Share Contribution, the City shall establish a separate account
in the City's accounts, books and records in the amount of Five Million Dollars
($5,000,000.00) to be used for payment of amounts that will be due to ICDC
pursuant to the Reimbursement Agreement, which amounts shall be disbursed
in accordance with the provisions of the Reimbursement Agreement and
following the payment in full of all such amounts due to ICDC pursuant to the
Reimbursement Agreement shall be fully available to the City. For purposes of
clarity, the foregoing sentence shall in no way be deemed to limit ICDC's right
to reimbursement pursuant to the Reimbursement Agreement and shall only be
construed to limit the amount that the City is required to deposit in the separate
account described therein."
10. Modification to Section 8.5.3 of the Original DDA. A new Section 8.5.3(e) is
hereby added to the Original DDA following Section 8.5.3(d), as follows:
"(e) Developer hereby agrees that CFD 13-01 for Affordable Moderate Multi -
Family Units and the First Amended Rate and Method of Apportionment of
Special Tax for Multi -Family Residential and Affordable Unit -Moderate Multi -
Family units approved by the City Council on May 7, 2013 and with second
reading on May 21, 2013 (the "Council Approved CFD"), is consistent with
the requirements of Section 8.5.3(a), (b) and (c) of the DDA. Developer hereby
waives its rights: (x) to require that the Council Approved CFD ordinance be
effective as a condition to Close of Escrow (it being acknowledged and agreed
by Developer that the vote to approve and second reading shall satisfy in full
the closing condition set forth in Section 7.2.10) of the Original DDA and (y)
to protest formation of the Council Approved CFD, provided, however, nothing
herein shall constitute a waiver of Developer's rights following the Close of
Escrow to challenge the levy of the special taxes of the Council Approved CFD
in any year in accordance with the process set forth in Section H of the First
Amended and Restated Rate and Method of Apportionment for the Council
Approved CFD. City hereby waives its rights to require that the Council
Approved CFD ordinance be effective as a condition to Close of Escrow (it
being acknowledged and agreed by the City that the vote to approve and second
reading shall satisfy in full the closing condition set forth in Section 7.2.2(f) of
the Original DDA)."
11. Modification to Section 9.2.2 of the Original DDA. Section 9.2.2.(a) of the Original
DDA is hereby deleted and replaced with the following:
"(a) final inspection of the Property by or on behalf of the City and
determination by the City that all Improvements have been Completed in
conformance with this Agreement and the Reimbursement Agreement, including
the Approved Plans and all Governmental Requirements (in each case, subject
to Section 1.6);".
12. Modification to Section 17.5.3 of the Original DDA. Section 17.5.3 of the Original
DDA is hereby deleted and replaced with the following:
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"17.5.3 Special Circumstances Where Damages may be Payable by the Citv.
Subject to Section 17.5.1, the limitations on damages set forth in Section 17.5.2 shall
not limit the liability of the City, if any, for damages which arise out of (a) a breach of
the City's representations and warranties contained in Sections 3.3 or 17.12 of this
Agreement, provided, however, that the amount of any damages payable pursuant to
this clause (a) shall be the lesser of (i) actual damages, or (ii) One Million Dollars
($1,000,000) less the amount of any Claim awarded to ICDC for a breach of a
representation or warranty by the City under the Reimbursement Agreement (or
ultimately determined by the trier of fact or in the course of settlement to be paid to
1CDC for a breach of a representation or warranty by the City under the
Reimbursement Agreement), (b) the indemnity set forth in Section 8.7, (c) the exercise
of any of the rights reserved to the City pursuant to Section 4.1(a)(i) or (ii) and as the
same shall be included in the Quitclaim Deed, or (d) any indemnity set forth in the
Reimbursement Agreement."
13. Modifications to Attachment No. 8 to the Original DDA (Scope of Development).
(a) Section 2.1.2 is hereby amended by adding thereto a new clause (e), as follows:
"(e) the IRWD Reimbursable Facilities."
(b) Section 2.1.3(a) of Attachment No. 8 to the Original DDA (Scope of Development)
is hereby deleted in its entirety and replaced with the phrase "Intentionally
Omitted".
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(c) Section 2.1.3(b) of Attachment No. 8 to the Original DDA (Scope of Development)
is hereby deleted in its entirety and replaced with the following:
"(b) the improvement of Warner Avenue from Legacy Road east to Tustin
Ranch Road. Improvements include master planned systems including the street
lighting, domestic water lines, gas, storm drainage, telephone, electricity, cable
TV, sewage and reclaimed water, telemetry and any necessary
telecommunication systems and as shown in the MCAS Tustin Specific Plan
and/or Irvine Ranch Water District Sub Area Master Plan for Tustin Legacy,
and/or as approved by the City and responsible private utility purveyors. Scope
of work for construction includes all surveying, rough and precise grading,
import and export of dirt as required, dewatering, sidewalks (adjacent to the
Parcel only), landscaping (adjacent to the Developer site only) and other work
to construct improvements in accordance with Tustin City standards. A portion
of the storm drain improvements will also include a section that transitions
from a 60 -in line into six 72 -inch lines to be used for storage as it nears Tustin
Ranch Road. The Developer will be responsible for constructing the entire
Warner Avenue storm drain. All storm drain improvements shall comply with
the City's ROMP. For purposes of clarity, and notwithstanding anything to the
contrary set forth herein, Developer shall have no obligation to construct the
Warner Avenue Street & Median Improvements."
14. Replacement of Attachment 14 to the Original DDA (Public Parcels).
The document labeled "Attachment No. 14" and attached to this First Amendment is
hereby incorporated by reference into the Agreement and replaces Attachment No. 14
attached to the Original DDA.
15. Modification of Attachment 21 to the Original DDA (Developer Backbone
Improvements).
(a) The document labeled "Attachment No. 21A" and attached to this First
Amendment is hereby incorporated by reference into the Agreement and replaces
Attachment No. 21A attached to the Original DDA.
(b) The document labeled "Attachment No. 21B" and attached to this First
Amendment is hereby incorporated by reference into the Agreement and replaces
Attachment No. 21B attached to the Original DDA.
(c) The document labeled "Attachment 21C" and attached to this First Amendment
is hereby incorporated by reference into the Agreement as Attachment 21C to the
Agreement.
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16. Modifications to Attachment 15 to the Original DDA (Certificate of Compliance).
(a) The bracketed language in Section 1 of Attachment 15 to the Original DDA is
hereby deleted in its entirety. The revised Section 1 shall read as follows:
69
1. This Certificate of Compliance covers and applies to the Parcel and the
entirety of the Improvements and the Project."
(b) Section 2 of Attachment 15 to the Original DDA is hereby deleted in its entirety
and replaced with the following:
"2. This Certificate of Compliance shall be deemed conclusive evidence of
the City's determination that the Developer has satisfactorily Completed
construction and development of all of the Improvements and has satisfied all
Conditions Precedent set forth in Section 9.2 of the DDA for issuance of this
Certificate of Compliance."
17. Matters Relating to Sewer Plans.
(a) Preparation of Plans. Developer shall cause the Sewer Plans to be prepared by
licensed engineers in the State in a competent, professional and satisfactory manner
in accordance with (i) all standards prevalent in the industry and (ii) all applicable
laws, ordinances, resolutions, statutes, rules and regulations of applicable
Governmental Authorities in effect at the time the Sewer Plans were prepared.
Developer shall rely on its own design professionals to ensure that the Sewer Plans
conform to the conditions of the land upon which the Sewer Improvements will be
constructed and engineering practices consistent with the standard of care followed
by licensed engineers in the design of similar improvements in Orange County,
California. Developer shall provide the City and ICDC with two (2) paper copies
of the complete set of Sewer Plans, together with an electronic copy of the Sewer
Plans in PDF and Autocad format.
(b) Access License. Prior to commencement of construction of any portion of the
Improvements to be constructed by ICDC on the Parcel, Developer shall provide
ICDC with access, via license, entry permit or otherwise, to the portion of the
Parcel required for the construction of such Improvements.
(c) Indemnification. Developer shall protect, indemnify, defend (with counsel
reasonably acceptable to the City) and hold the City and the City Indemnified
Parties harmless from and against any and all Claims, whether incurred by or made
against or recovered or obtained from any of the City Indemnified Parties, that arise
as a result of or by reason of or as a consequence of the Sewer Plans prepared by
or on behalf of Developer. The provisions of this Section 16(c) shall survive the
termination of the Agreement and the Close of Escrow until, with respect to each
portion of the Sewer Improvements, the earlier of (i) the expiration of the
applicable statute of limitations, or (ii) that date on which IRWD has accepted such
portion of the Sewer Improvements.
18. 1031 Exchange. The City acknowledges that Developer is intending to enter into an
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Assignment Agreement ("Assignmenf') with First American Exchange Company, LLC
("Intermediary") wherein Developer will assign its rights to acquire the Property
under the DDA, but not its obligations under the DDA, to Intermediary for the sole
purpose of consummating a tax deferred exchange pursuant to Section 1031 of the
Internal Revenue Code ("1031 Exchange"). In the event that Developer in fact
proceeds with the 1031 Exchange, the Assignment will be executed by Developer
immediately prior to the Close of Escrow, but notwithstanding such Assignment, the
Property will be deeded by the City directly to Developer pursuant to the Quitclaim
Deed. City consents to the assignment of such rights for the limited purpose of the
1031 Exchange, under the following conditions to which Developer agrees: (a)
Intermediary is not an approved transferee and shall not become the Developer under
the DDA for any purposes, and (b) that such assignment will not release, diminish,
alter or affect in any manner, Developer's obligations under the DDA or any other
document referred to in the DDA, including the Other Agreements. Accordingly,
Developer hereby reaffirms for the benefit of the City, that:
(a) all agreements, representations, covenants and warranties, express and implied,
made by Developer with respect to Property, including, without limitation, those
made in the DDA and the Other Agreements, shall survive the assignment of the
rights under the DDA to Intermediary and the conveyance of the Property to
Developer to the extent the DDA so provides;
(b) upon transfer of the Property to Developer, all rights arising from the DDA and the
Other Agreements shall be deemed to have been assigned and transferred by
Intermediary to Developer; and
(c) Legacy Villas LLC is and shall remain Developer under the DDA and the Other
Agreements and Legacy Villas LLC hereby specifically reaffirms that it retains all
liabilities and obligations of Developer under the DDA and the Other Agreements
which liabilities and obligations are expressly agreed by Legacy Villas LLC to
survive the transfers of the rights under the DDA to Intermediary and to continue to
be binding upon Legacy Villas LLC, as Developer, notwithstanding the
Assignment.
19. Definition of DDA Contained in Development Agreement. Developer hereby
requests that the City and Developer enter into the Administrative DA Amendment and
the City agrees to such request. The City Manager has determined that the proposed
terms of the Administrative DA Amendment described below meet the requirements
for an administrative amendment to the DA that may be entered into by the City
Manager pursuant to the authority granted to the City Manager under Section 2.6 of the
DA. The Administrative DA Amendment shall, as its sole substantive modification,
amend the definition of "DDA" contained in the DA to incorporate into such definition
the First Amendment and future amendments to the DDA by amending Recital B of
the DA to read as follows:
"B. CITY and DEVELOPER entered into that certain Tustin Legacy Disposition and
Development Agreement For Parcel 2A dated as of November 6, 2012 (the "Original
DDA"; and as amended by that certain First Amendment to Tustin Legacy Disposition
and Development Agreement For Parcel 2A dated as of June 4, 2013, and as the same
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may hereafter be further amended, modified or supplemented from time to time
pursuant to Section 17.3 of the Original DDA, the "DDA") pursuant to which CITY
agreed to sell, and DEVELOPER agreed to buy and develop, certain real property, all
as more specifically set forth in the DDA."
20. Conditions of Approval. Developer and the City acknowledge that pursuant to the
Reimbursement Agreement, the City has agreed to undertake the Warner Avenue Street
& Median Improvements, which Improvements constituted "Developer Backbone
Improvements" prior to the execution of this First Amendment. Developer is hereby
relieved of its obligation to construct the Warner Avenue Street & Median
Improvements. Accordingly, upon completion by the City, Developer or any other
Person of the Warner Avenue Street & Median Improvements, the following
components of the "conditions of approval" set forth in the Entitlements shall be
deemed to have been satisfied to the extent such conditions describe or require
performance of the Warner Avenue Street & Median Improvements, but in each case,
the deemed satisfaction of the conditions shall specifically exclude all work described
in such condition that does not constitute part of the Warner Avenue Street & Median
Improvements:
(a) The component of Condition 6.13 of Resolution #12-93 of the City Council,
requiring Developer to "complete full width improvements";
(b) The component of Condition 6.20 of Resolution #12-93 of the City Council,
requiring Developer "to construct full width improvements to Warner Avenue from
Tustin Ranch Road to Legacy Road"; and
(c) The component of Condition 6.22 of Resolution #12-93 of the City Council,
requiring Developer to "design and construct the Warner Avenue median".
21. Additional Matters Relating to Warner Avenue Street & Median Improvements.
The Reimbursement Agreement establishes a Construction Schedule (as defined in the
Reimbursement Agreement) that sets forth (a) the final day for commencement of
construction and the final day for Completion of construction of the Developer
Backbone Improvements and the IRWD Reimbursable Facilities for which ICDC is
responsible, and (b) the commencement and completion dates for the Warner Avenue
Street & Median Improvements to be constructed by the City. The City and Developer
acknowledge that the completion of the foregoing work impacts Developer's ability to
Complete the Improvements. Accordingly, (x) if the City fails to complete the Warner
Avenue Street & Median Improvements (which determination shall be made by the
Director) by the Warner Completion Date (defined below) and (y) such failure prevents
Developer from obtaining certificates of occupancy for any Units or from completing
any element of Developer's work on the Project, then Developer shall be entitled to an
extension of its obligation to Complete the Improvements and any other construction -
related interim deadlines equal to the number of days between the Warner Completion
Date and the actual date of completion of such Warner Avenue Street & Median
Improvements as determined pursuant to the Reimbursement Agreement. Developer
further agrees that its sole additional remedy (i.e., in addition to the extension provided
for in this Section 20) for the failure of the City to timely complete the Warner
Avenue Street & Median Improvements shall be the right to require ICDC to exercise
TIC Tustin First Amendment to DDA 05-30-2013.docx I 1 City of Tustin/
Legacy Villas LLC
22.
the self-help rights set forth in Section 2.14(c) of the Reimbursement Agreement.
The "Warner Completion mate" shall mean the later of (i) the date shown on the
Construction Schedule for the City's completion of the Warner Avenue Street &
Median Improvements, as extended by any time period authorized by Section 2.2.3 of
the Reimbursement Agreement, or (ii) December 30, 2014 (unless a later date is agreed
to in writing by Developer).
Miscellaneous.
(a) Agreement Ratified. Except as specifically amended or modified herein, each
and every term, covenant, and condition of the Original DDA is hereby ratified
and shall remain in full force and effect. Each and every reference to the
"Agreement" in the Original DDA shall be deemed to refer to the Original DDA
as amended by this First Amendment.
(b) Governing Law. This instrument shall be interpreted and construed in
accordance with the laws of the State of California.
(c) Binding Agreement. This First Amendment shall be binding upon and inure to
the benefit of the Parties hereto and their respective heirs, representatives,
successors and permitted assigns.
(d) Counterparts. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same document.
(e) City Cost Reimbursement. Developer hereby acknowledges that the costs and
expenses, including attorneys' fees, third party fees and staff costs, incurred by
the City in connection with the preparation, processing and approval of this First
Amendment, the Reimbursement Agreement, the Administrative DA Amendment
and the License Agreement shall constitute "City Transaction Expenses" as
provided in Section 1.8 of the Original DDA.
{signatures on following page}
TIC Tustin First Amendment to DDA 05-30-2013.docx 12 City of Tustin/
Legacy Villas LLC
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the First
Amendment Effective Date.
Dated:
ATTEST:
Erica Rabe
City Clerk Services Supervisor
APPROVED AS TO FORM:
0
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
Amy E. Freilich
"CITY"
CITY OF TUSTIN,
a California municipal corporation
0
Jeffrey C. Parker,
City Manager
{signatures continued on following page)
TFC Tustin First Amendment to DDA 05-30-2013.docx 13 City of Tustin/
Legacy Villas LLC
"DEVELOPER"
LEGACY VILLAS LLC,
a Delaware limited liability company
Date: Bv:
Name: Christopher L. Marsh
Title: Division President, Apartment Development
By:
Name: Bryan Austin
Title: Vice President, Project Management
TIC Tustin First Amendment to DDA 05-30-2013.docx 14 City of Tustin/
Legacy Villas LLC
JOINDER OF ESCROW HOLDER
The undersigned is joining this First Amendment to evidence its agreement to receive, hold
and disburse the Purchase Price Deposit in accordance with the terms of the Original DDA, as
hereby amended and otherwise to comply with the escrow instructions set forth in the Original
DDA, as hereby amended.
FIRST AMERICAN TITLE INSURANCE
COMPANY
Name:
Title:
TIC Tustin First Amendment to DDA 05-30-2013.docx 15 City of Tustin/
Legacy Villas LLC
ATTACHMENT 14
PUBLIC PARCELS
[To be attached.]
TIC Tustin First Amendment to DDA 05-30-2013.docx City of Tustin/
Legacy Villas LLC
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ATTACHMENT 21A
DESCRIPTION OF DEVELOPER BACKBONE IMPROVEMENTS
AND IRWD REIMBURSABLE FACILITIES
(AH as further shown in Attachment 21B to the DDA)
A. Developer Backbone Improvements:
No. Facili Reimbursement
Source
1. Warner Avenue Rough Grading & Improvements
a. Rough Grading (Plans by RBF for City of Tustin R -1913A) City of Tustin
b. Storm Drain (Plans by RBF for City of Tustin D -1913A) City of Tustin
c. Dry Utilities (Plans by Moran Utilities for City of Tustin) City of Tustin
d. Domestic Water (Plans by RBF for City of Tustin: IRWD 5724)** City of Tustin
2. Park Avenue Rough Grading and Improvements
a.
Rough Grading (Plans by RBF for City of Tustin R-1914)
City of Tustin
b.
Storm Drain (Plans by RBF for City of Tustin D-1914)
City of Tustin
c.
Dry Utilities (Plans by Moran Utilities for City of Tustin)
City of Tustin
d.
Street Improvements (Plans by RBF for City of Tustin R-1914)
City of Tustin
e.
Domestic Water (Plans by RBF for City of Tustin: IRWD 5724) **
City of Tustin
f.
Traffic Signal Upgrade (Plans by RBF for City of Tustin: TE 534)
City of Tustin
** Denotes an "Other IRWD Facility"
B. IRWD Reimbursable Facilities:
1. IRWD Reimbursable Facilities In Warner Avenue
a. Domestic and Reclaimed Water (Plans by RBF for City of Tustin: IRWD 5725) Irvine Ranch Water District
b. Sewer (Plans by Fuscoe for Legacy Villas LLC: Portion of IRWD 5910) Irvine Ranch Water
District
TIC Tustin First Amendment to DDA 05-30-2013.docx City of Tustin/
Legacy Villas LLC
2. IRWD Reimbursable Facilities In Park Avenue
a. Reclaimed Water (Plans by RBF for City of Tustin: IRWD 5725) Irvine Ranch Water
District
b. Sewer (Plans by Fuscoe for Legacy Villas LLC: Portion of IRWD 5910) Irvine Ranch Water District
3. IRWD Reimbursable Facilities (Within the Apartment Site Parcel)
a. Sewer (Plans by Fuscoe for Legacy Villas LLC: Portion of IRWD 5910) Irvine Ranch Water
District
TIC Tustin First Amendment to DDA 05-30-2013.docx City of Tustin/
Legacy Villas LLC
ATTACHMENT 21B
DEPICTION OF DEVELOPER BACKBONE IMPROVEMENTS
AND IRWD REIMBURSABLE FACILITIES
Same as Exhibit A-1 to Reimbursement Aa;reementl
[To be attached.l
TIC Tustin First Amendment to DDA 05-30-2013.docx City of Tustin/
Legacy Villas LLC
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ATTACHMENT 21C
DEVELOPER BACKBONE IMPROVEMENTS INITIAL COST ESTIMATES
[To be attached.
TIC Tustin First Amendment to DDA 05-30-2013.docx City of Tustin/
Legacy Villas LLC
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ATTACHMENT 25
FORM OF REIMBURSEMENT AGREEMENT
[To be attached.
TIC Tustin First Amendment to DDA 05-30-2013.docx City of Tustin/
Legacy Villas LLC
INFRASTRUCTURE CONSTRUCTION AND REIMMURSEMENT AGREEMENT
by and between
THE CITY OF TUSTIN
and
IRVINE COMMUNITY DEVELOPMENT COMPANY LLC,
A DELAWARE LIIVIITED LIABILITY COMPANY
Dated June 4, 2013
TABLE OF CONTENTS
INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT
RECITALS.................................................................................................................................................................1
ARTICLEI DEFINITIONS.......................................................................................................................................
2
Section1.1
Definitions......................................................................................................................................2
ARTICLE II CONSTRUCTION OF FACILITIES.................................................................................................10
Section2.1
Preparation of Plans.....................................................................................................................10
Section 2.2
Duty of ICDC to Construct..........................................................................................................10
Section 2.3
Contract Requirements.................................................................................................................11
Section2.4
Changes........................................................................................................................................14
Section2.5
Bonding Requirements.................................................................................................................15
Section 2.6
Inspection; Completion of Construction......................................................................................16
Section 2.7
Maintenance of Facilities; Transfer of Interest and Warranties...................................................16
Section2.8
Insurance Requirements...............................................................................................................17
Section2.9
Liens and Stop Notices.................................................................................................................18
Section 2.10
Facility Project Coordination.......................................................................................................19
Section2.11
Access License.............................................................................................................................19
Section2.12
Warranties and Guarantees...........................................................................................................19
Section 2.13
IRWD Reimbursable Facilities....................................................................................................19
Section 2.14
Warner Avenue Street & Median Improvements.........................................................................
20
Section 2.15
Disclaimer of Responsibility ........................................................................................................
21
ARTICLE III ACQUISITION OF FACILITIES.....................................................................................................21
Section 3.1
Transfer of Ownership of Facilities to City..................................................................................
21
Section 3.2
City Acceptance Process..............................................................................................................
22
Section3.3
Release of Bonds..........................................................................................................................
24
ARTICLE IV PAYMENTS, REIMBURSEMENT PROCEDURES AND RECONCILIATION ..........................24
Section4.1
Progress Payments for Facilities..................................................................................................
24
Section4.2
Payee............................................................................................................................................
26
Section4.3
Survival of Provisions..................................................................................................................
26
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION ..................
26
Section 5.1
Representation and Warranties of ICDC......................................................................................
26
Section5.2
Covenants of ICDC......................................................................................................................
26
Section 5.3
Representations and Warranties of the City .................................................................................
27
Tustin 1CDC Reimbursement 05-29-2013 IX FINAL.docx i City of Tustin/
Irvine Community Development Company LLC
Section5.4
Indemnification by ICDC............................................................................................................. 28
Section5.5
Indemnification by City ...............................................................................................................
29
ARTICLE VI REMEDIES; TERMINATION; DAMAGES...................................................................................
30
Section 6.1
Termination for Cause by City .....................................................................................................
30
Section6.2
Termination of Construction Contracts........................................................................................
32
Section 6.3
Remedies in General; Damages Limited......................................................................................32
Section6.4
Survival........................................................................................................................................33
ARTICLEVII MISCELLANEOUS........................................................................................................................ 33
Section7.1
Independent Contractor................................................................................................................33
Section 7.2
Binding on Successors and Assigns.............................................................................................
33
Section7.3
Amendments................................................................................................................................
33
Section7.4
Counterparts.................................................................................................................................
33
Section 7.5
Incorporation of DDA Provisions by Reference..........................................................................
33
Section7.6
Notices..........................................................................................................................................34
Section7.7
Duplicate Originals......................................................................................................................
34
Section7.8
Entire Agreement.........................................................................................................................
35
EXHIBIT A - Facilities Included in Developer Backbone Improvements.................................................. A-1
EXHIBIT B - Form of Potential Change of Work...................................................................................... B-1
EXHIBIT C - Form of Concurrence Letter................................................................................................. C-1
EXHIBIT D - Form of Assignment Agreement.......................................................................................... D-1
EXHIBIT E - Form of Request for Acceptance.......................................................................................... E-1
EXHIBIT F - Construction Schedule..........................................................................................................F-1
EXHIBIT G - Form of Payment Request................................................................................................... G-1
EXHIBIT H - Map of Access And Staging Areas....................................................................................... H-1
EXHIBIT I — Form of Access Agreement/Staging Area License.................................................................I-1
EXHIBIT J — Construction Contract Terms................................................................................................. J-1
EXHIBIT K — Subcontractor Insurance Requirements............................................................................... K-1
EXHIBIT K-1 — Professional Insurance Requirements............................................................................K-1-1
EXHIBIT L — Lien Release Requirements.................................................................................................. L-1
EXHIBIT M — Payment Request Submittal Requirements........................................................................ M-1
EXHIBITN — Form of Payment Bond........................................................................................................N-1
EXHIBIT O — Form of Performance Bond................................................................................................. 0-1
EXHIBIT P — ICDC Bid and Award Procedures.........................................................................................P-1
Tustin [CDC Reimbursement 05-29-2013 EX FINAL.docx ii City of Tustin/
Irvine Community Development Company LLC
INFRASTRUCTURE CONSTRUCTION
AND REIMBURSEMENT AGREEMENT
THIS INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT
AGREEMENT ("Agreement") is entered into as of June 4, 2013 (the "Effective Date"), by and
between the CITY OF TUSTIN, a California municipal corporation ("City'), and IRVINE
COMMUNITY DEVELOPMENT COMPANY LLC, a Delaware limited liability company
("ICDC"). City and ICDC are sometimes referred to in this Agreement individually as a "Party"
and collectively as the "Parties."
RECITALS
A. The City and Legacy Villas LLC, a Delaware limited liability company
("Developer") entered into that certain Tustin Legacy Disposition and Development Agreement for
Parcel 2A on November 6, 2012, as amended by that certain First Amendment to DDA dated June
4, 2013 ("First Amendment") and as thereafter amended (as so amended, the "DDA"), after the
City's selection of Developer pursuant to a competitive request for proposal process as the winning
bidder to (a) purchase and develop approximately 21.735 acres of land in Tustin, California as
depicted on Attachment 2A to the DDA (the "Parcel") for the development of residential
apartments, and (b) construct certain infrastructure improvements as more fully described in Recital
B below.
B. In connection with Developer's execution of the DDA and acquisition of the Parcel,
Developer agreed (i) to pay to the City the sum of Fifteen Million Three Hundred Thousand Six
Hundred Forty -Four Dollars ($15,300,644) referred to in the DDA and in this Agreement as the
"Project Fair Share Contribution" as Developer's contribution with respect to the Project's fair
share of the cost of the Tustin Legacy Backbone Infrastructure Program; (ii) to cause the
construction by ICDC (which is an affiliate of Developer and under common ownership and control
with Developer), of certain public infrastructure improvements described on Attachment 21A of the
DDA as "Developer Backbone Improvements," which improvements constitute a portion of the
public infrastructure improvements included within the Tustin Legacy Backbone Infrastructure
Program, all in accordance with the Plans (defined below) for same prepared by or on behalf of the
City; and (iii) to cause said Developer Backbone Improvements to be maintained until the City's
acceptance of such completed Developer Backbone Improvements.
C. The "Developer Backbone Improvements" to be constructed by ICDC pursuant to
this Agreement are listed on Exhibit A to this Agreement and include all of the Developer
Backbone Improvements described in the DDA. Each Developer Backbone Improvement listed on
Exhibit A is referred to herein individually as a "Facility" and collectively as the "Facilities." The
Facilities shall be described more specifically prior to construction by reference to the Plans.
D. Pursuant to this Agreement, ICDC agrees (i) to construct all Developer Backbone
Improvements and all portions of the IRWD Reimbursable Facilities other than the Sewer
Improvements (each as defined below) in accordance with the Plans, (ii) to construct the Sewer
Improvements in accordance with the Sewer Plans (defined below) and (iii) with respect to such
Work (defined below) to comply with all other requirements of this Agreement, for the benefit of
Tustin ICDC Reimbursement 05-29-2013 IX FINAL.docx 1 City of Tustin/
Irvine Community Development Company LLC
the City all as more particularly described herein. The IRWD Reimbursable Facilities shall be
described more specifically prior to construction by reference to the Plans and the Sewer Plans.
E. This Agreement is entered into by the City and ICDC in order to, among other
things; (i) establish certain obligations regarding the construction of the Developer Backbone
Improvements and the IRWD Reimbursable Facilities by ICDC, (ii) establish a schedule for the
construction of the Warner Avenue Street & Median Improvements by the City, and (iii) establish
the procedures under which the City shall reimburse ICDC for its construction of the Facilities,
accept the Facilities and confirm the completion of the IRWD Reimbursable Facilities.
NOW, THEREFORE, for and in consideration of the mutual premises and covenants
contained herein, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Unless the context otherwise requires, the following terms utilized in this Agreement shall
have the meanings herein specified:
"Acceptance Date" has the meaning set forth in Section 3.2.1(c).
"Actual Cost" means the following costs of ICDC with respect to a Facility: (a) the
Construction Cost with respect to such Facility; (b) any fees to Governmental Authorities in order to
obtain permits, licenses or other necessary governmental inspections, approvals and reviews for
such Facility; (c) the actual cost of professional services directly related to the construction of such
Facility, which services are provided pursuant to any Professional Services Agreement approved by
the City pursuant to Section 2.3.3, including without limitation surveying, engineering, inspection,
materials testing and similar professional services, and insurance required in connection with such
services; (d) costs of obtaining and maintaining payment and performance bonds and insurance as
required under this Agreement in connection with construction of such Facility; and (e) costs of
maintaining such Facility between completion thereof and the Acceptance Date; provided, however,
that each item of cost shall include only amounts actually paid by ICDC to third parties and shall
not include costs of Developer, overhead or other internal expenses of Developer or ICDC.
"Approved PCOW ' has the meaning set forth in Section 2.4.1.
"Assignment Agreement" means the agreement provided by ICDC to the City pursuant to
Section 2.6 under which ICDC (a) transfers to the City all right, title and interest in a completed
Facility and (b) assigns to the City the warranties and guaranties provided by the Subcontractor
under the Construction Contract for the completed Facility. The Assignment Agreement shall be in
the form of Exhibit E attached hereto.
"Authorized Extension" has the meaning set forth in Section 2.2.3.
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = 2 City of Tustin/
Irvine Community Development Company LLC
"Business Day" means any day on which City Hall is open for business and shall
specifically exclude Saturday, Sunday and legal holidays.
"Cause" has the meaning set forth in Section 6.1.2.
"City" means the City of Tustin, a general law city organized and existing under the laws of
the State.
"City Acceptance" means the approval by the City Council of the Request for Acceptance
of each Facility pursuant to Section 3.2.
"City Indemnitees" has the meaning set forth in Section 5.4.1.
"City Representative" means the individual or individuals authorized by the City to act and
coordinate with ICDC on behalf of the City with respect to the matters described in Section 2.10
and elsewhere in this Agreement.
"Claim" or "Claims" means any and all claims, actions, causes of action, demands, orders,
or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including
attorneys' fees, fees of expert witnesses and consultants and court and litigation costs), costs and
expenses attributable to compliance with judicial and regulatory orders and requirements, fines,
penalties, liens, taxes, or any type of compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen.
"Complete," "Completed" and "Completion" with respect to each Facility means that: (a)
construction of the Facility is complete in conformity with the Plans, this Agreement and the
Construction Contracts, with all systems (including mechanical, electrical, structural,
communication and other systems, as applicable) in good and proper operating condition and ready
for use such that the City may utilize the Facilities for their intended purpose; (b) all Work required
by this Agreement and the Construction Contracts with respect to such Facility, including minor
corrective work and minor deficient or incomplete work is complete, as evidenced by a certification
by the project engineer(s) for the Facility that such Facility has been completed in a good and
workmanlike manner and substantially in accordance with the Plans; (c) ICDC shall have obtained
fully executed conditional waiver and release forms from all Subcontractors and Sub -subcontractors
performing Work on the Facility in the form required by Civil Code Section 8136; and (d) any and
all mechanic's liens that have been recorded or stop notices that have been delivered with respect to
the Facility have been paid, settled or otherwise extinguished, discharged, released, waived, or
bonded (such bonding to be by the provision of bonds satisfying the provisions of Section 2.9).
"Concurrence Letter" shall mean a letter in the form of Exhibit C attached hereto under
which ICDC notifies the City of a bid requiring approval by the City in connection with the
construction of a Facility.
"Construction Contract" means the subcontract for construction of each Facility awarded
by ICDC to each Subcontractor in accordance with the procedures and meeting the requirements set
forth in Section 2.3 and the insurance requirements in Section 2.8.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 3 City of Tustin/
Irvine Community Development Company LLC
"Construction Cost" means the cost for constructing each Facility, including without
limitation labor, material and equipment costs, and costs of obtaining and maintaining payment and
performance bonds and insurance, established in the Construction Contract approved by the City for
such Facility, which amount shall only be modified by an Approved PCOW.
"Construction Schedule" has the meaning set forth in Section 2.2.3.
"Contract Price" has the meaning set forth in Section 2.3.6.
"DDA" means the Tustin Legacy Disposition and Development Agreement for Parcel 2A,
dated November 6, 2012, by and between the City and Developer, as originally executed and
amended by the First Amendment or as the same may be finther amended from time to time in
accordance with its terms.
"Developer" means Legacy Villas LLC, a limited liability company organized and existing
under the laws of the State of Delaware, and its successors and assigns as permitted in accordance
with the terms and provisions of the DDA.
"Developer Backbone Improvements" means the two Facilities described on Exhibit A as
(a) the Warner Avenue Rough Grading & Improvements under item A.1, and (b) the Park Avenue
Rough Grading and Improvements under item A.2. The Warner Avenue Rough Grading &
Improvements consist of the four items listed as A. La through A. Ld. The Park Avenue Rough
Grading and Improvements consist of the six items listed as A.2.a through A.2.£
"Director" means the City's Director of Public Works and any designee of said City
Director of Public Works.
"Effective Date" means the first date set forth on page 1 of this Agreement.
"Facility" means each public infrastructure facility required to be constructed as part of the
Developer Backbone Improvements specified on Exhibit A to this Agreement.
"Facilities" means the two Facilities required to be constructed as part of the Developer
Backbone Improvements specified on Exhibit A to this Agreement and specifically includes the
Other IRWD Facilities. The term "Facilities" does not include the IRWD Reimbursable Facilities.
"Fair Share Earmark Account" shall have the meaning set forth in Section 4.1.1.
"Final Approved Cost" means the final Actual Cost of each Facility as approved and
determined by the Director in accordance with the procedures set forth in Section 3.2.
"Final Acceptance" means that the conditions to approval by the City of the Request for
Acceptance set forth in Section 3.2.1 have been fully satisfied as to the Facility that is the subject of
such Request for Acceptance, including without limitation the approval of the Request for
Acceptance by the City Council.
Tustin ICRC Reimbursement 05-29-2013 EX FINAL.docx 4 City of Tustin/
Irvine Community Development Company LLC
"First Amendment" means the First Amendment to Tustin Legacy Disposition and
Development Agreement dated as of June 4, 2013 between Developer and the City.
"Force Majeure Delay" has the meaning set forth in Section 17.7 of the DDA (except that
the term "Party" as used therein shall mean the Parties under this Agreement and the terms "Work"
and "Agreement" shall have them meanings set forth in this Agreement), and includes, for purposes
of this Agreement only, the following additional clause which shall be deemed to be added to the
end of Section 17.7.1 of the DDA for purposes of determining a Force Majeure Delay under this
Agreement:
"(h) Excessive delay in issuance by Governmental Authorities of permits
required to prosecute the Work described in this Agreement, provided that
such delays are caused by events or circumstances outside the control of
ICDC or its Subcontractors or Sub -subcontractors. For example, if the delay
in issuance of a permit is due to the failure of ICDC or its Subcontractor to
submit a complete submittal for the required permit, then the time that
elapses between the incomplete submittal and the complete submittal shall
not be considered to be an "excessive delay" by the applicable Governmental
Authority. Further, the time taken for any review or approval by the City as
required hereunder shall not be considered to be an "excessive delay " if
such review or approval is made within the time period specified in this
Agreement or if no specified time period is set forth, is made within ten (10)
business days of submittal of such matter to the City. "
"General Prevailing Wage Rates" means those rates determined by the Director of the
Department of Industrial Relations of the State of California to be "prevailing wage" rates for each
of the trades and workers to which prevailing wage rates apply, as such rates are set from time to
time by such director for the region in which the City is located.
"Governmental Authority" means any and all federal, State, county, municipal and local
governmental and quasi -governmental bodies and authorities or departments (including the United
States of America, the State of California and any political subdivision, public corporation, district,
joint powers authority or other political or public entity) or departments thereof having or exercising
jurisdiction over the Parties, the Parcel, the Sites or other property upon which ICDC or the City are
obligated to construct the Developer Backbone Improvements, the IRWD Reimbursable Facilities
or the Warner Avenue Street & Median Improvements, or such portions of the foregoing as the
context indicates.
"Governmental Capacity" means the exercise by the City of its governmental authority
with respect to any matter related to this Agreement, including without limitation, the regulation of
the Parcel and the Sites pursuant to Governmental Requirements, including enacting laws,
inspecting structures, reviewing and issuing permits, and all other legislative, administrative or
enforcement functions of each pursuant to federal, state or local law.
"Governmental Requirement" means all laws, statutes, codes, ordinances, rules,
regulations, standards, guidelines and other requirements issued by any Governmental Authority
having jurisdiction over, governing, applying to or otherwise affecting the Parties, the Parcel, the
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Sites and/or other property upon which ICDC or the City are obligated to construct the Developer
Backbone Improvements, the IRWD Reimbursable Facilities or the Warner Avenue Street &
Median Improvements or any component thereof, including without limitation building permits
related to construction of such improvements.
"Hazardous Materials" shall mean and include without limitation the following:
(a) "Hazardous Substance", "Hazardous Material", "Hazardous Waste", or
"Toxic Substance" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C.
subsection 6901, et seq.;
(b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a
"Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the
California Health and Safety Code;
(c) "Hazardous Material", "Hazardous Substance", "Hazardous Waste",
"Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501, 25501.1,
117690 or 39655 of the California Health and Safety Code;
(d) "Oil" or a "Hazardous Substance" listed or identified pursuant to
Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any
other hydro carbonic substance or by-product;
(e) A material listed or defined as a "Hazardous Waste", "Extremely
Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the
California Code of Regulations;
(f) A material listed by the State of California as a chemical known by the State
to cause cancer or reproductive toxicity pursuant to Section 25249.9(a) of the California Health and
Safety Code;
(g) A material which, due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to damage, health, safety,
or the environment, or is required by any law or public agency to be remediated, including
remediation which such law or public agency requires in order for the property to be put to any
lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. subsection 136 et seq.;
0) Asbestos, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. subsection 2601 et seq.;
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(k) Any radioactive material including any "source material", "special nuclear
material", "by-product material", "low-level wastes", "high-level radioactive waste", "spent nuclear
fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however
produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et seq., the Nuclear
Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California Radiation
Control Law, California Health and Safety Code Section 114960 et seq.;
(1) A material regulated under the Occupational Safety and Health Act,
29 U.S.C. subsection 651 et seq., or the California Occupational Safety and Health Act, California
Labor Code subsection 6300 et seq.; and/or
(m) A material regulated under the Clean Air Act, 42 U.S.C. subsection 7401
et seq. or pursuant to Division 26 of the California Health and Safety Code.
"ICDC" means Irvine Community Development Company LLC, a limited liability company
organized and existing under the laws of the State of Delaware.
"ICDC Indemnitees" has the meaning set forth in Section 5.5.1.
"ICDC Parties" has the meaning set forth in Section 2.3.6.
"ICDC Pre -Paving Work" means the following Work: all portions of the "Warner Rough
Grading & Improvements" and the "IRWD Reimbursable Facilities in Warner Avenue" described
on Exhibit A other than raising of manhole covers and valves, installing sidewalks, installing street
lights, and installing the traffic signal at the intersection of Warner Avenue and Legacy Road.
"ICDC Representative" means the individual or individuals authorized by ICDC to act and
coordinate with the City on behalf of ICDC with respect to the matters described in Section 2.10
and elsewhere in this Agreement, including but not limited to execution of any Request for
Acceptance signed by ICDC and delivered to the City. Each Request for Acceptance shall contain
an original signature of at least one ICDC Representative.
"IRWD" means the Irvine Ranch Water District.
"IRWD Reimbursable Facilities" means the improvements described on Exhibit A as
IRWD Reimbursable Facilities (Items B.1, B.2 and B.3) to be directly reimbursed by IRWD to
ICDC pursuant to an existing reimbursement agreement or other agreement between such entities,
and for which the City shall have no responsibility to pay.
"IRWD Facilities" means the IRWD Reimbursable Facilities and the Other IRWD
Facilities, collectively.
Navy" means the United States Department of Navy.
"Non -Parcel Site" has the meaning set forth in Section 2.3.9.
"Notice of Completion" means a valid notice of completion as defined in California Civil
Code Section 8180 et seq.
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"Other IRWD Facilities" means IRWD non -capital improvements that shall be subject to
reimbursement by the City for the Actual Cost thereof. The Other IRWD Facilities shall include: (i)
the 10" domestic water line in Warner Avenue, together with any other facilities related thereto (but
excluding IRWD Reimbursable Facilities) as shown on the "Plans for Domestic Water
Improvements, Park Avenue, from Private Driveway to Tustin Ranch Road, Warner Avenue from
Legacy Road to Tustin Ranch Road," IRWD Code 5724, prepared by RBF Consulting, and (ii) the
10" domestic water line in Park Avenue between Tustin Ranch Road and the entry road to the
Parcel, together with any other facilities related thereto (but excluding IRWD Reimbursable
Facilities) as shown on the "Plans for Domestic Water Improvements, Park Avenue, from Private
Driveway to Tustin Ranch Road, Warner Avenue from Legacy Road to Tustin Ranch Road," IRWD
Code 5724, prepared by RBF Consulting. Each of the Other IRWD Facilities shall be owned and
maintained by IRWD following acceptance thereof by IRWD and payment of the Actual Cost of
each Other IRWD Facility by the City.
"Parcel" means the approximately 21.735 acres of land in Tustin, California as depicted on
Attachment 2A to the DDA being acquired by Developer for the development of residential
apartments and construction of certain infrastructure improvements.
"Payment Bond(s)" means the bond or bonds issued by a surety authorized to do business
in the State of California that guarantees the payment in full of all Subcontractors, Sub -
subcontractors, laborers, material suppliers and other Persons performing Work.
"Payment Request" has the meaning set forth in Section 4.1.2.
"PCOW ' has the meaning set forth in Section 2.4.1.
"Performance Bond(s)" means the bond or bonds issued by a surety authorized to do
business in the State of California and guaranteeing due and punctual performance and completion
(within the respective times provided in the Construction Schedule) in accordance with the
applicable Plans or Sewer Plans that specifically describe the Work to be performed in sufficient
detail for the issuance of such Performance Bond, and including all obligations of Subcontractors,
Sub -subcontractors and other Persons with respect to the Work covered by such bond.
"Person" means an individual, a corporation, a partnership, an association, a limited liability
company, a joint stock company, a trust, any unincorporated organization or a government or
political subdivision thereof.
"Plans" means the plans and specifications for (a) each Facility and (b) each IRWD
Reimbursable Facility other than the Sewer Improvements, all of which plans and specifications
have been prepared at the direction of the City and approved by the City's engineer pursuant to
Section 2.1 and delivered to ICDC by the Director.
"Professional" means a professional consultant to whom a Professional Services Agreement
is awarded by ICDC in accordance with the procedures set forth in Sections 2.3.2 and 2.3.3.
"Professional Services Agreement" means the agreement for the provision of professional
services related to the construction of each Facility awarded by ICDC to each Professional in
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accordance with the procedures and meeting the requirements set forth in Section 2.3 and the
insurance requirements in Section 2.8.
"Project" has the meaning set forth in Section 1.3.2 of the DDA.
"Project Fair Share Contribution" has the meaning set forth in Recital C.
"Release" (with respect to Hazardous Materials) shall mean any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, migrating, disposing or dumping into the environment.
"Request for Acceptance" has the meaning set forth in Section 3.2.1.
"Sewer Improvements" means the sewer improvements within Warner Avenue, Park
Avenue and the Parcel described on Exhibit A as IRWD Reimbursable Facilities B. Lb, B.2.b and
B.3.a and as further described by the Sewer Plans.
"Sewer Plans" means the plans and specifications for the sewer within Warner Avenue,
Park Avenue and the Parcel, entitled "Capital Sewer Improvements, Planning Area 2A -Tustin
Legacy, Tract No. 17404, Lots 29, 30, 38 and -39, Project No. 4329, IRWD Code 5910," prepared
by Fuscoe Engineering Inc. at the direction of Developer.
"Site' has the meaning set forth in Section 2.4.3.
"Special Restrictions" means the Declaration of Special Restrictions that will be recorded
against the Parcel on the date when Developer's acquisition of the Parcel from the City is closed.
"State" means the State of California.
"Subcontractor" means the winning bidder to whom the Construction Contract for
construction of a Facility is awarded by ICDC in accordance with the procedures set forth in
Sections 2.3.2 and 2.3.3.
"Sub -subcontractor" means any entity retained to perform a portion of the Work that does
not have a direct contractual relationship with ICDC and shall include entities retained by a
Subcontractor at any tier to perform a portion of the Work under the Construction Contract.
"Tustin Legacy" means the portion of the closed Marine Corps Air Station -Tustin located
within the City of Tustin and owned by the City as of the effective date of the DDA or subject to
ground lease between the Navy and the City.
"Tustin Legacy Backbone Infrastructure Program" means the various backbone
infrastructure improvements located outside of the Parcel as more specifically described in Section
8.5.1 of the DDA.
"Warner Avenue Street & Median Improvements" means the following infrastructure
improvements for the segment of Warner Avenue between Legacy Road and Tustin Ranch Road to
be constructed by or on behalf of the City: landscape median, roadway paving, curb and gutter for
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landscape median and roadway borders, and traffic signal upgrade at intersection of Warner Avenue
and Tustin Ranch Road, which improvements are referenced on the "Plans for Street and Domestic
Water Improvements — Warner Avenue from Legacy Road to Tustin Ranch Road," CIP No. 70202,
IRWD Code 5724, prepared by RBF Consulting.
"Work" means the construction, installation, maintenance and services required by the
Plans and the Sewer Plans, and includes without limitation all labor, services, equipment or
materials provided or to be provided by ICDC to fulfill ICDC's obligations with respect to each
Facility and IRWD Reimbursable Facility constructed under this Agreement.
ARTICLE 11
CONSTRUCTION OF FACitLMES
Section 2.1 Preparation of Plans
The City shall cause the Plans for each Facility and for each IRWD Reimbursable Facility
other than the Sewer Improvements to be prepared by licensed engineers in the State in a
competent, professional and satisfactory manner in accordance with (a) all standards prevalent in
the industry and (b) all applicable laws, ordinances, resolutions, statutes, rules and regulations of
applicable Governmental Authorities in effect at the time the Plans were prepared. The Director
shall provide ICDC with two (2) paper copies of the complete set of Plans for each Facility,
together with an electronic copy of the Plans in PDF and Autocad format. ICDC shall obtain the
Sewer Plans from Developer.
Section 2.2 Duty of ICDC to Construct
2.2.1 General Contractor. ICDC shall act as the General Contractor for the
Project and shall construct or cause the construction of each Facility and each IRWD Reimbursable
Facility in accordance with the Plans and the Sewer Plans therefor, as applicable, and the
Construction Schedule. ICDC shall provide, or cause to be provided, all labor, materials,
equipment, supplies, tools, permits, supervision, transportation, services, sales tax and all other
things necessary to complete the Facilities and the IRWD Reimbursable Facilities in accordance
with the Plans and the Sewer Plans therefor, as applicable, including all Work expressly specified
therein and reasonably inferred from the Plans and the Sewer Plans.
2.2.2 Quality and Care. ICDC shall perform all of its obligations
hereunder, shall cause all Subcontractors to perform the Work, and shall conduct all operations with
respect to the Work in a good, workmanlike and commercially reasonable manner, with the
standard of diligence and care normally employed by duly qualified Persons utilizing commercially
reasonable efforts in the performance of comparable work and in accordance with generally
accepted practices in Orange County, California, appropriate to the activities undertaken. Unless
otherwise specified in the Plans and the Sewer Plans, all materials shall be new and of good quality
and ICDC shall, if requested by the City, furnish satisfactory evidence to the City as to the kind and
quality of materials. The Work shall be performed in a manner that complies with the requirements
of any manufacturers' warranties applicable to equipment or materials included in any of the
Facilities or the IRWD Reimbursable Facilities.
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2.2.3 Construction Schedule. The "Construction Schedule" is set forth on
Exhibit F and sets forth (a) the final day for commencement of construction and the final day for
Completion of construction of each Facility and each IRWD Reimbursable Facility for which ICDC
is responsible, and (b) the start and completion dates for the Warner Avenue Street & Median
Improvements to be constructed by the City, which shall be performed in two phases, with the
initial phase following the completion by ICDC of the ICDC Pre -Paving Work and the second
phase following the completion by ICDC of the raising of manhole covers and valves. The
commencement and Completion dates established for each Facility and IRWD Reimbursable
Facility for Work to be performed by or on behalf of ICDC in the Construction Schedule shall be
subject to extension only for (x) "Authorized Extensions" requested pursuant to a PCOW and
approved by the Director in writing in accordance with the procedure set forth in Section 2.4.1
below, (y) with respect to the Warner Avenue Facility only, City's failure to commence and
complete each phase of the Warner Avenue Street & Median Improvements within the times
specified in the Construction Schedule for performance by the City (in which event the
Construction Schedule applicable to the Work to be performed by or on behalf of ICDC shall be
extended by the number of days of delay by the City in completing the Warner Avenue Street &
Median Improvements not authorized pursuant to this Section), or (z) a Force Majeure Delay or for
any other reason permitted by this Agreement. In the event that (i) any extensions for the foregoing
reasons are provided for any of the aforementioned improvements to be constructed by ICDC or (ii)
additional time is required by reason of default by ICDC with respect to its obligations under this
Agreement, and such extension or additional time affects the start of construction of any
improvement to be constructed by the City as noted on Exhibit F or delays the City's completion of
such improvements, then the start and completion dates for each phase of the Warner Avenue Street
& Median Improvements shown on Exhibit F to be constructed by the City shall likewise be
extended for an equal period of time (and such extension shall not create a right of extension to
ICDC.)
2.2.4 Repairs. In connection with ICDC's or any Subcontractor's
construction of the Facilities or the IRWD Reimbursable Facilities, ICDC shall be responsible for
any damage caused by ICDC or any Subcontractor to the Warner Avenue Street & Median
Improvements or any other property of City, and shall, within ten (10) Business Days of receipt of
substantiation from City of any such damage caused by ICDC or any Subcontractor, meet and
confer with City to confirm the extent of the damage for which such parties are responsible and to
identify the parties responsible for making repairs. Thereafter, ICDC shall either promptly cause
the repair of such damage or after City's repair of any such damage, shall reimburse the City for the
cost of the repairs paid for by City within thirty (30) days of receipt of City's invoice and backup
information substantiating the cost of the repairs or such cost of repair may be retained by the City
from any monies due to ICDC under this Agreement.
Section 2.3 Contract Renuirements
ICDC shall comply with and, at such intervals and in such form as the City may reasonably
require, provide proof to the City that the following requirements have been satisfied as to each of
the Facilities.
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2.3.1 Bidding Requirements. The Construction Contracts for the
construction of each Facility shall be awarded to the responsible bidder submitting the lowest
responsive bid for such Facility and utilizing the Construction Contract prepared by ICDC.
2.3.2 Bid/RFP Process. After receipt of the Plans for each Facility from the
City, ICDC shall solicit bids for such construction of the Facility (or in the case of services,
proposals related to the construction of the Facility) in a timely manner to ensure compliance with
the commencement date for such Facility set forth in Construction Schedule. The bid and award
procedures to be followed by ICDC in connection with the construction of each Facility are
described on Exhibit P attached hereto. ICDC may solicit bids either for an individual Facility or
for multiple Facilities at one time. If the Work is bid for multiple Facilities at one time, ICDC will
require all bidders to specify the cost of each Facility separately, and shall require in any
Construction Contract awarded to the successful bidder that all progress payment and final payment
applications submitted by the Subcontractor break out separately the cost of constructing each
Facility.
2.3.3 Award of Contract or Professional Services Agreement. Promptly
after receipt and opening of all bids, ICDC will submit to the City a spreadsheet showing all bids
received. The City shall have a period of five (5) Business Days from receipt of the bid results for
review and approval of same. After receipt of the City's approval of the responsible bidder
submitting the lowest responsive bid for the construction of the Facility (which approval shall be
confirmed in a Concurrence Letter in the form of Exhibit C attached hereto), ICDC shall award the
Construction Contract for the construction of such Facility or Facilities to that contractor. The
construction contract for each Facility awarded to the winning bidder is hereinafter referred to as a
"Construction Contract" and the winning bidder for such Facility is referred to as the
"Subcontractor." Likewise, as to all professional services agreements required in connection with
the Construction of each Facility, ICDC shall provide the City with a spreadsheet showing all
proposals received, after which the City shall have a period of five (5) Business Days from receipt
of the spreadsheet to review and approve of same. After receipt of City's approval of the
professional consultant with the lowest responsive proposal to perform the services (which approval
shall be confirmed in a Concurrence Letter in the form of Exhibit C attached hereto), ICDC shall
enter into a professional services agreement with the approved consultant. The professional
services agreement so awarded is hereinafter referred to as the "Professional Services Agreement"
and the winning bidder for such services is referred to as the "Professional." Promptly after the
award of each such Construction Contract or Professional Services Agreement, ICDC shall furnish
the City with a copy of (a) the fully executed Construction Contract documents and one copy of the
bid package received from the Subcontractor to whom the Construction Contract was awarded,
and/or (b) with respect to professional services, the fully executed Professional Services Agreement
and one copy of the proposal received from the Professional to whom the Professional Services
Agreement was awarded.
2.3.4 Public Works Contract Requirements: Prevailing Wages. The
specifications and bid and contract documents shall require that ICDC and the Subcontractor shall
comply and shall cause its Sub -subcontractors to comply with all applicable provisions of the
California Labor Code, the California Government Code and the California Public Contract Code
relating to public works projects of cities. In addition, ICDC shall cause each Subcontractor and
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require in its Construction Contract that each Subcontractor shall cause its Sub -subcontractors
engaged to perform Work on a Facility (a) to pay at least General Prevailing Wage Rates to all
workers employed in the performance of the Construction Contract or any subcontract, (b) to post a
copy of the General Prevailing Wage Rates at the job -site in a conspicuous place available to all
employees and applicants for employment (c) to otherwise comply with applicable laws relating to
public works projects of cities, and (d) if requested by ICDC or the City, to provide certified copies
of payrolls or affidavits confirming that each Subcontractor and its Sub -subcontractors have paid
prevailing wages in connection with the construction of the Facilities and IRWD Reimbursable
Facilities. ICDC shall require in its Construction Contract that Subcontractor comply with all
applicable laws for public works projects, including California Labor Code Sections 1771, 1775,
1776, 1777.5, 1813 and 1815, and shall attach copies of such Labor Code provisions in an exhibit
attached to the Construction Contract used with each Subcontractor.
2.3.5 Compliance With Law. In connection with construction of each
Facility and each IRWD Reimbursable Facility, ICDC shall, and shall require each Subcontractor
to, comply with all applicable laws, ordinances, regulations and building codes of applicable
Governmental Authorities. Neither ICDC nor any Subcontractor or Sub -subcontractor shall
discriminate in its employment practices against any employee, or applicant for employment,
because of such individual's race, religion, national origin, ancestry, sex, sexual orientation, age,
physical handicap, marital status or medical condition.
2.3.6 Contract Requirements; City Rights. The Construction Contract used
by ICDC shall include, among other provisions, the terms and conditions set forth on Exhibit .I
attached hereto and each Construction Contract shall not include any provisions that diminish the
rights of the City or the obligations of Subcontractor or any Sub -subcontractors thereunder. The
price for the Work set forth in each Construction Contract ("Contract Price") shall be established
as a not -to -exceed price as determined in accordance with the procedures set forth in Exhibit P.
Notwithstanding any other provision of this Agreement, ICDC shall be responsible for (a) all costs
under the Construction Contracts in excess of the established Contract Price as modified only by an
Approved PCOW, and (b) any loss incurred by the City as a result of the breach of a Construction
Contract by a Subcontractor or a defect in the Work or faulty workmanship (unless covered by
Subcontractor's warranty assigned to the City on the Acceptance Date for the applicable Facility).
Nothing contained in this Agreement shall create any contractual relationship between the City and
any Subcontractor, Sub -subcontractor, vendor, material supplier, laborer or any other Person
retained by ICDC or retained by any of the foregoing, at any tier, or their respective officers,
employees or agents (collectively, the "ICRC Parties').
2.3.7 Subcontractor Insurance. ICDC shall require the Subcontractor for
each Facility and each of its Sub -subcontractors engaged to perform Work on a Facility, to provide
proof of insurance coverage satisfying the requirements of Section 2.8.4 throughout the term of the
construction of such Facility.
2.3.8 Compliance with City Requirements. ICDC shall comply, and shall
cause each Subcontractor and each of its Sub -subcontractors, vendors, material suppliers,
equipment operators and owner operators, to the extent each such Person is engaged to perform
Work, to comply with such other requirements relating to the Work as the City may impose by
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written notification delivered to ICDC, to the extent legally required as a result of changes in
applicable federal, State or City laws.
2.3.9 Approval of Sewer Plans. ICDC shall provide the Sewer Plans to the
City upon approval thereof by IRWD. The City shall have ten (10) Business Days to review and
comment upon such Sewer Plans with respect to portions of the Site other than the Parcel (the
"Non -Parcel Site"). Failure of the City to respond within such time period shall be deemed to
mean that the City has no comments on the Sewer Plans. ICDC shall forward to IRWD any
comments that the City provides within such ten (10) Business Day period for IRWD's
consideration. ICDC shall construct the IRWD Reimbursable Facilities in accordance with the
Sewer Plans (or any revisions thereto) as approved by IRWD. .
Section 2.4 Changes
2.4.1 PrelimigM Chane of Work R2guest. ICDC shall provide the City
with a preliminary change of work request in the form of Exhibit B (each, a "PCOW') within ten
(10) Business Days of initiation of changed conditions to the Construction Contract or in connection
with any request for an extension of time (i.e., for an Authorized Extension), which PCOW shall be
subject to City approval in its sole discretion. The Director shall provide written approval or
disapproval of any such PCOW within ten (10) Business Days of the Director's receipt of same
from ICDC. Each PCOW approved by the City in writing is referred to herein as an "Approved
PCOW." If the Director fails to respond within such ten (10) Business Day period, such failure to
respond shall be deemed to constitute disapproval of the PCOW. There shall be no change to the
Construction Schedule, the Plans, the scope of the Work, the Actual Cost of a Facility or amount
due to ICDC and no extension of time unless such change in time, Plans, Work or cost is set forth
on an Approved PCOW. A design revision or construction change order or increase in the quantity
of any unit price item over the bid quantity involving the Facilities shall be considered null and void
for purposes of reimbursement hereunder unless approved in writing by both the Director and the
ICDC Representative.
2.4.2 Changes to Plans. City and ICDC agree that if, during design or
construction, the City requests or initiates any revision to the Plans, or if any such revision to the
Plans as a result of such City request also requires changes to the Sewer Plans, then the cost of any
such revision to the Plans (and, if applicable, the Sewer Plans) shall be borne by the City. In such
event, the City will promptly furnish ICDC with copies of any proposed design revisions to the
Plans and the Parties shall process a PCOW to address the impacts of any such change in the Plans
(and, if applicable, the Sewer Plans) on the cost of Work and the Construction Schedule. ICDC
shall not modify the Plans without first obtaining the City's prior approval of such modification. In
the event of any changes to the Sewer Plans for the Non -Parcel Site or the Plans prepared by the
City for the Facilities -- whether as a result of the change to the Plans requested by the City or a
change to the Sewer Plans initiated by ICDC or carried out pursuant to Section 2.3.9 -- ICDC shall
provide a copy of the proposed change to the Sewer Plans to City for review and comment in
accordance with Section 2.3.9 prior to initiating any Work related to such change.
2.4.3 Constructability Review. ICDC represents and warrants that it has
visited and examined the land upon which the Developer Backbone Improvements and the IRWD
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Reimbursable Facilities will be performed (the "Site"), that it has examined all physical, legal and
other conditions affecting the Work and that it has become sufficiently familiar therewith to
perform the Work In addition, ICDC has reviewed the Plans and Sewer Plans for the
constructability thereof from a cost and schedule perspective. The City shall rely on its own design
professionals to ensure that the Plans conform to Site conditions and engineering practices
consistent with the standard of care followed by licensed engineers in the design of similar
improvements in Orange County, California.
Section 2.5 Bondine Requirements
2.5.1 Provision of Bonds; Terms. Prior to the commencement of
construction of each Facility, ICDC shall secure and provide to the City a Payment Bond for such
Facility to ensure payment of all Subcontractors, Sub -subcontractors, laborers and material
suppliers with respect to such Facility. In addition, ICDC shall obtain from each Subcontractor to
whom a Construction Contract is awarded for each Facility (and, if required by IRWD, for each
IRWD Reimbursable Facility), a Performance Bond to ensure completion of the performance of the
Work on each such Facility (and, if required, each IRWD Reimbursable Facility). The Payment
Bond for each Facility that is delivered to the City by ICDC or any Subcontractor shall meet the
requirements above and shall be substantially in the form of Exhibit N to this Agreement unless
otherwise agreed by the City in its sole discretion. The Performance Bond for each Facility that is
delivered to the City by each Subcontractor shall meet the requirements above and be substantially
in the form of Exhibit O to this Agreement unless otherwise agreed by the City in its sole
discretion. Any Performance Bonds provided by ICDC or its subcontractors with respect to the
IRWD Reimbursable Facilities shall be on the bond forms required by IRWD.
2.5.2 Additional Requirements. Each bond for a Facility shall be (a) in an
amount that is at least equal to 100% of the amount of the bid approved by the City pursuant to
Section 2.3.3, or (b) if bids have not been received, in an amount equal to the amount of the
engineer's estimate for the Facility being bonded, including reasonable contingency. Each bond for
a Facility provided shall, unless otherwise agreed by the City in its sole discretion, be issued by a
surety company duly authorized to issue such bonds in the State of California and rated "A" or
better by A.M. Best and name the City as a covered obligee thereunder. Further, if Performance
Bonds are required by IRWD for any IRWD Reimbursable Facility, ICDC shall assure that such
Performance Bonds name IRWD and the City as covered obligees thereunder. Without the prior
written approval of the City in its sole discretion each Payment Bond and Performance Bond
delivered to the City with respect to the Facilities shall not be terminated or modified in any respect
prior to the Acceptance Date of the Facility for which it was provided.
2.5.3 Increase in Security. To the extent that the cost of any Facility (or, if
applicable, IRWD Reimbursable Facility) is determined at any time by the Director to have
increased such that the Payment Bond or any Performance Bond provided pursuant to this Section is
less than the then -estimated cost to complete such Facility (or, if applicable, IRWD Reimbursable
Facility), the City may, in its sole discretion, require ICDC to (a) post a replacement Payment Bond
to secure such estimated additional costs, or (b) obtain from its Subcontractor a replacement
Performance Bond to secure such estimated additional costs.
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2.5.4 Bond Costs. Actual Costs for each Facility shall include the cost of
the Payment Bond procured by ICDC for such Facility and the cost of Performance Bonds procured
by each Subcontractors for each Facility and shall not include the cost of any additional
performance or payment bonds that may be required by ICDC, unless otherwise agreed by the City
in its sole discretion.
2.5.5 Release of Bonds. Any Payment and Performance Bonds for a
Facility or IRWD Reimbursable Facility shall be released (or reduced in amount) only as provided
in Section 3.3 below.
Section 2.6 Inspection: Completion of Construction
2.6.1 Inspection. The City shall be entitled (a) to inspect, for purposes of
observation and comment only, the construction of the IRWD Reimbursable Facilities upon the
Non -Parcel Site as it deems necessary to assure compliance with the Plans and the Sewer Plans and
(b) to inspect the Facilities as it deems necessary to assure compliance with the Plans, in each case
including shop drawing review and material inspection thereof. The City shall have access to all
phases of the Work for the Facilities and IRWD Reimbursable Facilities for the purpose of such
inspection. The City's personnel shall have access to the Site at all reasonable times for the purpose
of accomplishing such inspections. The City will promptly notify ICDC of any portion of the Work
that appears not to conform to the Plans or the Sewer Plans. In addition, within five (5) Business
Days following receipt of an inspection request from ICDC, the City shall have its inspectors
inspect the Work to confirm that such Work is accomplished in accordance with the Plans. The
determination of the City as to conformity of the Facilities and the IRWD Reimbursable Facilities
on the Non -Parcel Site with the Plans and the Sewer Plans, as applicable, shall be made in the
City's sole and absolute discretion.
2.6.2 Notice of Completion. Within fifteen (15) calendar days after the
Acceptance Date of each Facility pursuant to the procedures set forth in Section 3.2 below, ICDC
shall file with the Orange County Recorder a Notice of Completion, in form acceptable to the
Director, pursuant to the provisions of Section 8180 et seq. of the California Civil Code.
Section 2.7 Maintenance of Facilities; Transfer of Interest and Warranties
Prior to the Acceptance Date of each Facility (and prior to IRWD's acceptance of each
IRWD Reimbursable Facility), ICDC shall be responsible for maintaining (or causing the
maintenance of) such Facility (or IRWD Reimbursable Facility, as the case may be) in good and
proper operating condition, and shall perform (or cause to be performed) such maintenance on the
Facility as the Director reasonably determines to be necessary. At such time as ICDC delivers the
Request for Acceptance to the' Director, ICDC shall also deliver three duplicate originals of an
Assignment Agreement substantially in the form of Exhibit D, executed by ICDC and the
Subcontractor that constructed the Facility, under which ICDC shall assign to the City all of ICDC's
right, title and interest in the completed Facility and all warranties, express or implied, with respect
to the Facility (except for an Other IRWD Facility, in which case the title and warranty rights shall
be assigned by ICDC to IRWD), including without limitation those provided pursuant to the
Construction Contracts(s) and subcontracts for the Facility, effective as of the Acceptance Date, all
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in accordance with the procedures set forth in Section 3.2.1. The warranties under each
Construction Contract shall be consistent with the terms set forth on Exhibit ,I unless otherwise
agreed by the City in its sole discretion and shall be in effect for a term of not less than one year
from the Acceptance Date of each Facility accepted by the City, except that landscaping warranties
shall have a term of no less than one hundred and twenty (120) days from the Completion of such
Work. ICDC shall have no maintenance responsibilities with respect to such Completed Facility
after the Acceptance Date.
Section 2.8 Insurance Requirements
2.8.1 Insurance Types and Levels of Coverage. ICDC shall either obtain
and maintain for the term of this Agreement or shall cause each Subcontractor who constructs a
Facility or any other improvements on the portion of the Site owned by the City to maintain from
the effective date of the Construction Contract until the Acceptance Date of the Facility constructed
by such Subcontractor, the insurance specified on Exhibit K in accordance with all requirements
specified on said Exhibit. Likewise, each Professional shall be required to maintain from the
effective date of the Professional Services Agreement until the Acceptance Date of the applicable
Facility for which services were performed, the insurance specified on Exhibit K-1 in accordance
with all requirements specified in said Exhibit. ICDC shall not reduce or eliminate the insurance
coverages required by Exhibit K and Exhibit K-1 of this Agreement, including without limitation,
by reducing the amounts of coverage, increasing the permitted self-insured retention or deductibles
or reducing any requirements relating to the insurance carriers, ratings or types of insurance
required without the prior written approval of the City, in its sole discretion.
2.8.2 Sub -subcontractor Insurance Requirements. ICDC shall include in
its Construction Contract with each Subcontractor the requirement that, in addition to the insurance
that Subcontractor must maintain, Subcontractor will not permit any Sub -subcontractors or other
Persons to work on the Facility or on the portions of the Site owned by the City until each such Sub -
subcontractor or other Person has complied with, the general liability, automobile liability, and
workers compensation insurance requirements specified in Section 5 of Exhibit K, including
without limitation, the requirement that each Sub -subcontractor or other Person name the City and
the other parties specified in said Exhibit as additional insureds on its general liability insurance
policy. Likewise, ICDC shall require in its Professional Services Agreement with each Professional
that provides services in connection with a Facility the requirement that, in addition to the insurance
the Professional must maintain, Professional will not permit any subconsultants or other Persons
who provide any portion of such services to commence such services until each subconsultant or
other Person obtains and maintains the levels of insurance in accordance with the requirements set
forth in Exhibit K-1.
2.8.3 City Right to Procure Insurance. If ICDC fails to cause each
Subcontractor to maintain any insurance required hereby, the City may, but shall not be obligated
to, procure such insurance and recover the amount of the premiums therefor from ICDC or retain
such amount from any monies due to ICDC under this Agreement. The failure of the City to
procure any such insurance shall in no way relieve ICDC of any of its obligations under this
Agreement.
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2.8.4 No Limitation. ICDC's or any Subcontractor's maintenance of
insurance as required by this Agreement shall not be construed to limit the liability of ICDC or the
Subcontractor to the coverage provided by such insurance, or otherwise limit the City's recourse to
any remedy available at law or equity.
Section 2.9 Liens and Stop Notices
2.9.1 No Liens. ICDC shall keep the Site and all other property owned by
the City free from any and all liens relating to the Work. ICDC shall obtain conditional and
unconditional lien releases in accordance with applicable provisions of the California Civil Code
from all Subcontractor, Sub -subcontractor, vendors, material supplier and other Persons performing
any portion of the Work in accordance with the procedures specified on Exhibit L attached hereto.
ICDC shall promptly notify the City in the event any Subcontractor, Sub -subcontractor, vendor or
material supplier or other Person refuses to deliver any such conditional and/or unconditional
waiver and lien release.
2.9.2 Removal of Liens. ICDC shall, within thirty (30) calendar days
following receipt of notice thereof. (a) cause to be removed or bonded against (with bonds
satisfying California statutory requirements), any and all mechanic's liens, stop notices and bonded
stop notices that are recorded or served by ICDC, any Subcontractors or other ICDC Parties in
connection with the construction of any Facility or IRWD Reimbursable Facility or other work
performed by or on behalf of ICDC or the ICDC Parties, and (b) provide to the Director written
evidence acceptable to the Director in his or her sole discretion of the withdrawal of any lien or lis
pendens and/or notice of action that has been recorded against the Site as well as against any other
property owned by the City in connection with such mechanic's lien claim. Notwithstanding the
foregoing, ICDC may contest the amount, validity or application, in whole or in part, of any such
mechanic's liens, stop notices and bonded stop notices; subject, however, to the further requirement
that neither the Facility or IRWD Reimbursable Facility, nor the Site nor any part or interest in
either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome
of such proceedings. If any such contest is finally resolved against ICDC, ICDC shall promptly pay
the amount required to be paid, together with all interest and penalties accrued thereon.
2.9.3 Stop Notices. If a stop notice is served upon the City, the City may,
until the discharge or bonding thereof, withhold from the moneys under its control so much of said
moneys due or to become due to ICDC under this Agreement as shall be equal to one hundred
twenty-five percent (125%) of the amount stated in such stop notice. Any bond filed pursuant to
this Section 2.9.3 shall comply with the provisions of California Civil Code Section 9364 and the
requirements of Section 2.9.4.
2.9.4 Bond Requirements. Any bond filed with the City to satisfy the
requirements of this Section 2.9 shall be issued by a corporate surety authorized to issue security
bonds in the State of California in an amount equal to one hundred twenty-five percent (125%) of
the claim stated in the mechanics' lien, material supplier's lien, stop notice or notice to withhold.
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Section 2.10 Facility Proiect Coordination
With respect to communications regarding PCOWs, bonding, payment requests and all other
matters relating to construction of each Facility and IRWD Reimbursable Facility, the City and
ICDC designate the following individuals as their respective Project Coordinators:
(a) City Representative. Ken Nishikawa, telephone: (714) 573-
3389, e-mail: knishikawa@tustinca.org, shall be the City's representative and contact person.
(b) ICDC Representative. Bryan Austin, telephone: (949) 720-
2724, e-mail: baustin@irvinecompany.com, shall be ICDC's representative and contact person.
The City and ICDC may, at any time, change their respective representative by providing
written notice to the other Party.
Section 2.11 Access License
Prior to commencement of construction of each Facility and IRWD Reimbursable Facility,
City shall (a) provide ICDC with a License or Entry Permit on City's standard form for the land
required for the construction of the Facility and/or IRWD Reimbursable Facility on the portions of
the Site owned by the City as depicted on Exhibit H to this Agreement, which license shall be in
the form set forth in Exhibit I to this Agreement, and (b) obtain for ICDC a right of access for
construction of such Facility and/or IRWD Reimbursable Facility on any portions of the Site not
owned by the City or Developer.
Section 2.12 Warranties and Guarantees
ICDC shall include in each Construction Contract a written guarantee for each Facility and
IRWD Reimbursable Facility against defects in workmanship and materials for the periods
specified in Section 2.7 in the form and substance of the guarantee and warranty provisions set forth
in Exhibit J or as otherwise approved by the City in its sole discretion. ICDC shall not reduce or
modify the guarantee or warranty coverage provided by such provisions or the time period in which
such guarantees or warranties remain in effect without the prior written approval of the Director.
The warranties shall remain in effect for a period of one (1) year commencing from the date of Final
Acceptance of the Work by the City (or, in the case of landscape improvements, one hundred and
twenty (120) days from Completion thereof). Upon Completion of each Facility, ICDC shall
provide all warranty paperwork, if any, to the City. No Final Acceptance by the City shall operate
as a waiver or release with respect to any warranties applicable to the Work or the Facilities or any
rights or remedies pertaining thereto.
Section 2.13 IRWD Reimbursable Facilities
ICDC hereby acknowledges and agrees on behalf of itself and each Subcontractor and Sub -
subcontractor that the City shall have no responsibility or obligation to pay for work, equipment,
materials, labor or services performed in connection with the IRWD Reimbursable Facilities.
Notwithstanding the foregoing, ICDC acknowledges the integral relationship of the IRWD
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Reimbursable Facilities to the Facilities and accordingly agrees to the following with respect to the
IRWD Reimbursable Facilities:
(a) prior to commencement of construction of the first Facility, ICDC will provide the
City with a copy of the reimbursement or other agreement between ICDC and IRWD
governing construction of the IRWD Reimbursable Facilities.
(b) ICDC shall provide the City with monthly progress reports regarding the status of the
work and the schedule for completion of the IRWD Reimbursable Facilities.
(c) Subject to the cure period specified in Section 6.1.2 of this Agreement, failure of
ICDC to commence construction of and to Complete the IRWD Reimbursable Facilities
within the time period set forth in the Construction Schedule as extended (i) by an
Authorized Extension, (ii) by a Force Majeure Delay or (iii) for any other reason expressly
permitted by this Agreement, shall be a default by ICDC under this Agreement.
(d) Each IRWD Reimbursable Facility shall be constructed in accordance with all
requirements of IRWD.
Section 2.14 Warner Avenue Street & Median Improvements
The Parties acknowledge that ICDC will not be able to Complete all of the Warner Rough
Grading & Improvements listed on Exhibit A until the City Completes construction of the Warner
Avenue Street & Median Improvements. The City agrees to the following with respect to the
construction of the Warner Avenue Street & Median Improvements:
(a) Provided that ICDC has completed all portions of the ICDC Pre -Paving Work in
accordance with the Construction Schedule, the City shall cause the Warner Avenue Street
& Median Improvements (base paving and curb & gutter) to be commenced and completed
by the dates set forth in the Construction Schedule on Exhibit F. Thereafter, provided
ICDC raises the manhole covers and valves in the Warner Avenue right-of-way by the dates
set forth on Exhibit F. the City shall cause the remainder of the Warner Avenue Street &
Median Improvements (i.e., the final cap paving, repairs and median landscaping) to be
completed by the dates set forth in said Exhibit. Any dates set forth in said Exhibit or in this
Section 2.14 are subject to change based on an Authorized Extension, Force Majeure Delay
or any other reason permitted by this Agreement.
(b) In connection with the City's construction of the Wamer Avenue Street & Median
Improvements, the City shall be responsible for any damage caused by City's contractors to
the Work (including but not limited to the ICDC Pre -Paving Work) or any other property of
ICDC or Developer, and shall, within ten (10) Business Days of receipt of substantiation
from ICDC of any such damage caused by the City's contractors, meet and confer with
ICDC to confirm the extent of the damage for which the City's contractors are responsible
and to identify the parties responsible for making repairs. Thereafter, City shall either
promptly cause the repair of such damage or after ICDC's repair of any such damage, shall
reimburse ICDC for the cost of the repairs paid for by ICDC within thirty (30) days of
receipt of ICDC's invoice and backup information substantiating the cost of the repairs.
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(c) If the City fails to complete the second phase of the Warner Avenue Street & Median
Improvements (which determination shall be made by the Director) by the later of: (i) the
date shown on the Construction Schedule for the City's completion of such work, as
extended by any time period authorized by Section 2.2.3; or (ii) December 30, 2014 (unless
a later date is agreed to in writing by ICDC), and such failure prevents Developer from
obtaining certificates of occupancy for any units within the apartment development within
the Parcel or from any satisfying any other condition or requirement of the City or other
Governmental Authority related to the completion of Warner Avenue or the opening thereof
for public traffic, then ICDC shall have the right, as its sole remedy with respect to failure of
the City to construct the Warner Avenue Street & Median Improvements, upon ten (10)
Business Days prior written notice to the City, to advise the City of ICDC's election to
Complete the Warner Avenue Street & Median Improvements. In such event, the City shall
reimburse ICDC for its costs to Complete such improvements within thirty (30) days of
City's receipt of ICDC's invoice and backup information substantiating the costs of
Completing such improvements.
(d) ICDC acknowledges that after the completion of fust phase of the Warner Avenue
Street & Median Improvements, ICDC shall be responsible for completing the remainder of
the Warner Avenue Rough Grading & Improvements (that is, installing sidewalks, street
lights and the traffic signal at the intersection of Warner Avenue and Legacy Road), prior to
ICDC's submission of a Request for Acceptance of such Facility by the City, and such Work
shall be performed in accordance with the time for such performance set forth in the
Construction Schedule.
Section 2.15 Disclaimer of Responsibility
With respect to the Sewer Plans and all improvement plans in connection with the
Work not prepared or caused to be prepared by the City, the City hereby disclaims all responsibility
therefor, including, without limitation, any duty to ICDC, IRWD or any other Person to review or
inspect any matter in connection with the design, development or construction of such Work
whether regarding the quality, adequacy or suitability of improvement plans, any labor, service,
equipment or material fiunished for development of the Work, any Person furnishing same, or
otherwise . The review by the City of any design submittals shall not constitute the assumption of
any responsibility by, or impose any liability upon, the City as to the accuracy, dfficacy, sufficiency
or legality thereof nor decrease or diminish any liability, duties, responsibilities, or obligations of
ICDC under this Agreement or otherwise. The provisions of this Section shall survive the
termination of this Agreement.
ARTICLE III
ACQUISITION OF FACILITIES
Section 3.1 Transfer of Ownership of Facilities to City
Upon Completion of each Facility, ICDC shall transfer such Facility (other than for the
Other IRWD Facilities that will be conveyed by ICDC to IRWD) to the City in accordance with the
terms and conditions of this Article III. To the extent that any Facilities to be transferred are located
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on land owned by Developer, ICDC shall coordinate with Developer so that easements for any such
Facilities located on Developer -owned land are conveyed to the City on the Acceptance Date of
each Facility. Ownership of each Facility shall be transferred to the City as of the "Acceptance
Date" of such Facility, which shall be memorialized in the Assignment Agreement provided by
ICDC to the City in accordance with the requirements of Section 2.7 and Section 3.2.1. ICDC shall
be responsible for maintenance of each Facility in a good and operable condition until the
Acceptance Date and shall deliver the Facilities to the City in good and operable condition.
Notwithstanding the fact that some or all of the Facilities may be constructed in dedicated street
rights-of-way or on property that is not owned by ICDC, each Facility shall be and remain the
property of ICDC until title thereto or ownership thereof is conveyed as provided herein. With
respect to the IRWD Facilities, each IRWD Facility shall be conveyed by ICDC directly to IRWD;
provided, however, that (a) with respect to each Other IRWD Facility, such Other IRWD Facility
shall not be conveyed until the Acceptance Date of the Facility on the Site within which the Other
IRWD Facility is located and City has reimbursed ICDC for the cost of such Other IRWD Facility,
and (b) with respect to the IRWD Reimbursable Facilities, each such IRWD Reimbursable Facility
shall be conveyed by ICDC to IRWD on the Acceptance Date of the Facility on the Site within
which the IRWD Reimbursable Facility is located provided that IRWD has reimbursed ICDC for
the cost of such IRWD Reimbursable Facility. Further, in the event that an easement is required for
any IRWD Facility that has been Completed on land owned by the City, the City shall convey to
IRWD an easement for the operation and maintenance of such IRWD Facility in the form mutually
acceptable to IRWD and the City.
Section 3.2 City Acceutance Process
3.2.1 Request for Acceptance. Pursuant to Section -2.6
, at such time as the
City's inspectors are satisfied that a Facility has been completed in accordance with the Plans
therefor, ICDC shall provide written notice to the Director in the form of a "Request for
Acceptance" substantially in the form of Exhibit E, in accordance with the following process:
(a) Information Provided with Request. ICDC shall deliver to the
Director: (i) a complete fully executed Request for Acceptance of such Facility, together with all
attachments referenced therein to be included with such request; (ii) as -built drawings and one (1)
copy of the Subcontractor's redlined set of "record" drawings (showing all revisions as required by
the City or IRWD, as applicable) and one (1) copy of the compaction reports and certificate for the
Facility trench zones, survey notes and cut sheets; (iii) lien releases in accordance with the
procedures set forth on Exhibits E and L attached hereto; (iv) a final accounting of the Actual Cost
incurred in constructing the Facility, together with supporting receipts and documentation; (v) if an
Other IRWD Facility or an IRWD Reimbursable Facility is located within the Site where the
Facility is located, a copy of a letter of acceptance or other proof that IRWD has accepted or is
prepared to accept such Other IRWD Facility or IRWD Reimbursable Facility, as the case may be;
and (vi) three duplicate originals of the Assignment Agreement for the Facility signed by ICDC and
the Subcontractor, with the effective date left blank in Section 2 of said Assignment Agreement for
completion as provided in clause (c) below.
(b) Review of Information by Director. -Final Approved Cost.
Upon receipt of a complete and fully executed Request for Acceptance (and accompanying
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documentation and such other documentation related to the Work as the Director may reasonably
request) for a Facility, the Director, acting in a Governmental Capacity, shall conduct a final review
of the Request for Acceptance and accompanying documentation specified in subsection (a) above
and this subsection (b) in order to: (i) confirm that such Facility was constructed in accordance with
the Plans and has been Completed; (ii) examine the final accounting provided by ICRC and verify
and approve the Actual Cost and the Final Approved Cost of such Facility; (iii) confirm that all
information provided with the Request for Acceptance is accurate; (iv) confirm that any mechanic's
and material supplier's liens filed in connection with construction of the Facility have been removed
and the statutory time periods for filing of any such liens has expired; (v) confirm that the lien
releases as described in Sections 2.9.1 and 3.2.1(a) have been delivered by ICDC; and (vi) if
applicable, confirm that IRWD has accepted or is prepared to accept the Other IRWD Facility or
IRWD Reimbursable Facility located within the Site where such Facility was constructed. ICDC
agrees to cooperate with the Director in conducting each such review and to provide the Director
with such additional information and documentation as is reasonably necessary for the Director to
conclude each such review. The City agrees to cause the Director to commence such review within
ten (10) Business Days of receipt of such Request for Acceptance and to thereafter complete such
review without unreasonable delay (and in any event, within thirty (30) days of the Director's
receipt of a fully complete and executed the Request for Acceptance together with all attachments
referenced therein to be included with such request). If the Director determines that the Actual Cost
specified in such Request for Acceptance exceeds ICDC's actual costs to construct the Facility as
verified by the supporting information provided by ICDC or contains any amounts not included in
the definition of Actual Cost contained in Section 1.1 (e.g., the Construction Cost of the Facility
exceeds the Contract Price for the Facility as modified by any cost changes as set forth in any
Approved PCOW), then ICDC shall either (A) meet with the Director to provide information why
ICDC believes the Director's determination is in error and resolve such discrepancy to the
Director's satisfaction, in the Director's sole discretion or (B) resubmit such Request for
Acceptance with the Actual Cost specified therein modified so as to take into account such
determination by the Director. The final Actual Cost approved by the Director for such Facility (the
"Final Approved Cost") shall be the Actual Cost for that Facility used in connection with any
payments made by City and for all other purposes set forth in Article IV below. The Director shall
notify ICDC of the Final Approved Cost of the Facility in the completed Request for Acceptance
returned to ICDC.
(c) Final Acceptance by City: Acceptance Date. Upon
(i) approval by the Director of the items specified in clause (b) above (including verification of
IRWD's letter of acceptance or similar proof that any IRWD Reimbursable Facility or any Other
IRWD Facility located within the Site are acceptable to IRWD), and (ii) approval by the City
Council of the Request for Acceptance with respect to each Facility, the Director shall execute and
issue the final acceptance of each Completed Facility. The "Acceptance Date" of each Facility
shall be the date when all of the following have been deemed complete to the satisfaction of the
Director acting in a Governmental Capacity: (i) the Director has completed its review of the
Request for Acceptance and accompanying documentation; (ii) the Director has confirmed that all
information provided with the Request for Acceptance is accurate and that the Facility has been
constructed in accordance with the Plans therefor and is Completed; (iii) the Director has verified
the final accounting provided by ICDC and provided the Final Approved Cost for the Facility to
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ICDC; (iv) any mechanic's and material supplier's liens filed in connection with construction of the
Facility have been removed and the statutory time periods for filing of any such liens has expired;
(v) the Director has confirmed that the lien releases as described in Section 2.9.1 and 3.2.1(a
) have
been delivered by ICDC; (vi) if applicable, the Director has confirmed that IRWD has accepted or is
prepared to accept the Other IRWD Facility or IRWD Reimbursable Facility located within the Site
where such Facility was constructed; (vii) the City Council has approved the Request for
Acceptance with respect to each Facility, and (viii) the Director has approved the Assignment
Agreement for the completed Facility. Upon the Acceptance Date with respect to each Facility, the
Director shall (A) sign the Request for Acceptance and insert the Final Approved Cost and the
Acceptance Date of the Facility in the "Approval by City" section of the signed Request, (B) sign
the three duplicate originals of the Assignment Agreement and insert the Acceptance Date in
Section 2 thereof, and (C) return the fully completed and signed Request for Acceptance and two
fully completed and signed duplicate originals of the Assignment Agreement to ICDC; provided,
however, that with respect to each of the IRWD Facilities, no such Assignment Agreement shall be
signed by the City as such assignment of warranties shall be provided directly by ICDC to IRWD.
(d) ICDC Actions Upon Receipt of Approved Request. Upon
ICDC's receipt of the documentation described in clause (c) above from the City, ICDC shall,
within ten (10) days of receipt of such documents, (i) return one fully signed duplicate original of
the Assignment Agreement to the Subcontractor so that the Subcontractor is aware that its warranty
obligations under the Construction Contract for the Facility have been transferred to the City as of
the Acceptance Date, and (ii) with respect to each of the IRWD Facilities, provide an Assignment
Agreement of Subcontractor's warranties directly to IRWD pursuant to ICDC's standard procedure
with IRWD.
3.2.2 Facility Modifications. ICDC shall not make modifications in the
composition of any Facility without the City's prior written approval (and with respect to any
IRWD Reimbursable Facility, without the prior written approval of IRWD).
Section 3.3 Release of Bonds
Notwithstanding any other provision of this Agreement, any Performance
Bonds and Payment Bonds provided to the City as security under this Agreement for the
construction of any Facility will be released upon the Acceptance Date of each Facility, provided
that the City shall retain ten percent (10%) of the Performance Bond (or accept, in its sole
discretion, a separate replacement bond to cover the warranty) to guarantee such Facility will be
free from defects due to faulty workmanship or materials for the period of any warranty assigned to
the City pursuant to an Assignment Agreement as described in Section 3.2.1.
ARTICLE IV
PAYMENTS, REEWBURSEMENT PROCEDURES AND RECONCILIATION
Section 4.1 Prowess Payments for Facilities
4.1.1 Project Fair Share Contribution. Under the terms of the DDA as
amended, Developer is obligated to pay to the City the Project Fair Share Contribution at close of
escrow for acquisition of the Parcel. Upon its receipt of the Project Fair Share Contribution, the
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City shall establish a separate account in the City's accounts, books and records in the amount of
Five Million Dollars ($5,000,000.00) until the earlier of the Acceptance Date for all of the Facilities
or the termination of this Agreement (the "Fair Share Earmark Account"). The money in the Fair
Share Earmark Account shall be used for reimbursement payments from the City to ICDC for
Actual Costs incurred by ICDC in connection with construction of the Facilities.
4.1.2 Progaress Pam. From and after the date of City's receipt of the
Project Fair Share Contribution from Developer, on a monthly basis during the construction of each
Facility, ICDC shall submit a request for payment (each, a "Payment Request") to the City in the
form of Exhibit G and the "Invoice and Payment Summary" attached as Exhibit G-1, which
Payment Request certifies the amount of the Actual Costs incurred in connection with construction
of such Facility during the preceding month (which shall be net of a ten percent (10%) retention of
the estimated value of the Work performed under each Construction Contract), which retention shall
be held as retention until Final Acceptance as security for the fulfillment of the obligations of each
Subcontractor who performs Work on a Facility), together with such supporting information in
accordance with the "Payment Request Submittal Procedures" attached as Exhibit M. Within thirty
(30) days of City's receipt of each fully completed and certified Payment Request and supporting
information, City shall reimburse ICDC for the Actual Cost shown on the Payment Request and
approved by the City. Each Payment Request shall include ICDC's certification of the accuracy of
the information set forth in the Payment Request.
4.1.3 Final Accounting and Payment for Facilities. Promptly after
Completion of each Facility, ICDC shall complete a Request for City Acceptance and submit such
request, along with a final Payment Request and a final accounting of the Actual Costs incurred in
Completing such Facility and all other supporting documentation, to the City in accordance with the
procedures set forth in Section 3.2.1. In the final accounting of the Actual Costs, ICDC shall
include the costs incurred (or reasonably anticipated to be incurred) in connection with maintenance
of such Facility between the date of Completion of same and the Acceptance Date. Within thirty
(30) days of the Acceptance Date of each completed Facility, the City shall pay ICDC the difference
between (a) the Final Approved Cost of such Facility, and (b) the total progress payments for such
Facility previously paid by the City to ICDC. If the Final Approved Cost for such Facility shall for
any reason be less than the total progress payments previously paid to ICDC by the City for such
Facility, ICDC shall promptly and in all events, within thirty (30) days of the determination of the
Final Approved Cost for such Facility, reimburse the City for any such difference.
4.1.4 No Payment for Work Prior to Developer Contribution. Based on the
timing of the Project Fair Share Contribution as required in the amended DDA, such contribution
shall be made prior to ICDC's commencement of construction of each Facility. The City's
obligation to reimburse ICDC for any progress or final Payment Request shall not, in any event, be
applicable for any work on any Facility commenced by ICDC prior to Developer's payment of the
Project Fair Share Contribution to the City. ICDC shall not issue any notice to proceed to any
Subcontractor in connection with the Work prior to Developer's payment of the Project Fair Share
Contribution to the City.
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Section 4.2 Payee.
All payments by the City to ICDC pursuant to this Agreement shall be made payable to
"Irvine Community Development Company LLC" and sent to Irvine Community Development
Company, 550 Newport Center Drive, Newport Beach, CA 92660, Attention: Nicholas Reichert.
Section 4.3 Survival of Provisions.
The provisions of this Article IV shall survive the termination of this Agreement.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMIVMCATION
Section 5.1 Rearesentation and Warranties of ICDC
ICDC makes the following representations and warranties for the benefit of the City:
(a) Organization. That it is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware, is authorized to
conduct business and is in good standing under the laws of the State, and has the power and
authority to own its properties and assets and to carry on its business as now being conducted and as
now contemplated.
(b) Authori That it has the power and authority to enter into this
Agreement, and has taken all actions necessary to cause this Agreement to be executed and
delivered, and this Agreement has been duly and validly executed and delivered on behalf of ICDC.
(c) Binding Obligation. That this Agreement is a valid and binding
obligation of ICDC and is enforceable against ICDC in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general equity principles.
(d) No Legal Impediment. That it is not aware of any legal impediment
that would make infeasible ICDC's proceeding with and completing the construction of the
Facilities or the IRWD Reimbursable Facilities.
Section 5.2 Covenants of ICDC
ICDC makes the following covenants for the benefit of the City:
(a) Completion of Facilities. ICDC covenants that it will use its
reasonable and diligent efforts to do all things that may be lawfully required of it in order to cause
the Facilities and the IRWD Reimbursable Facilities to be completed in accordance with this
Agreement.
(b) Compliance with Laws. ICDC covenants that in carrying out its
obligations under this Agreement and in constructing the Facilities and the IRWD Reimbursable
Facilities, it shall, and shall cause its Subcontractors and all Sub -subcontractors to comply with all
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applicable Governmental Requirements. During the period while the Facilities and IRWD
Reimbursable Facilities are owned by ICDC or required to be maintained by ICDC pursuant to this
Agreement, ICDC will not commit, suffer or permit any of its agents, employees or Subcontractors
to commit any act to be done in, upon or to the Facilities or any IRWD Reimbursable Facilities in
violation of any applicable Governmental Requirement. In addition, with respect to any Work
performed on the Parcel, ICDC shall comply with the applicable provisions of the Special
Restrictions.
(c) Request for Acceptance. ICDC covenants that (i) it will not request
payment from the City under this Agreement for the acquisition of any improvements that are not
part of a Facility, and (ii) it will diligently follow all procedures set forth in this Agreement with
respect to each Request for Acceptance for a Completed Facility.
(d) Financial Records. Until the Acceptance Date of each Facility, ICDC
covenants to maintain proper books of record and account for the Facilities and all costs related
thereto for which ICDC requests reimbursement from the City. ICDC covenants that such records
will be available for inspection by the City within a reasonable time after the City submits a written
request to ICDC requesting that such records be made available for inspection.
(e) Environmental Matters Relating to Facilities. ICDC covenants that
neither ICDC, nor the Subcontractor and other Persons retained by ICDC to construct any Facility
or IRWD Reimbursable Facility, will use, generate, manufacture, procure, store, release, discharge
or dispose of (whether accidentally or intentionally) at any time on or prior to the later of the
Acceptance Date of each Facility or the date of acceptance of the IRWD Reimbursable Facility by
IRWD any Hazardous Materials on, under or in such Facility or any IRWD Reimbursable Facility
or the Site, or transport (whether accidentally or intentionally) any Hazardous Materials to or from
such Facility or IRWD Reimbursable Facility or the Site, in violation of any federal, State or local
law, ordinance, regulation, rule or decision regulating Hazardous Materials in effect at the time of
such use, generation, manufacturing, procurement, storage, release, discharge, disposal or
transportation, other than for any Hazardous Materials that may be contained in the materials or
components of the Facility or IRWD Reimbursable Facility as required by the Plans or the Sewer
Plans.
(f) Permits. ICDC covenants that it will obtain all governmental or other
permits required to proceed with the construction of the Facilities and the IRWD Reimbursable
Facilities and that it will pay all fees relating thereto that are required to be paid, which permit fees
for Facilities shall be included in the Actual Cost of each Facility for which the City is responsible
to reimburse ICDC.
Section 5.3 Representations and Warranties of the ON
The City represents and warrants for the benefit of ICDC that the City has the power and
authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to
be executed and delivered, and this Agreement has been duly and validly executed and delivered on
behalf of the City and that it is a valid and binding obligation of the City and is enforceable against
the City in accordance with its terms.
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Section 5.4 Indemnification by ICDC
5.4.1 Indemnification and Other Obligations. ICDC shall protect,
indemnify, defend (with counsel reasonably acceptable to the City) and hold the City and its elected
and appointed officials, employees, consultants, contractors and agents (the "City Indemnitees")
harmless from and against any and all Claims, whether incurred by or made against or recovered or
obtained from the City or any of the City Indemnitees or any combination thereof, that arise as a
result of or by reason of or as a consequence of. (a) the construction, installation or maintenance of
the Work or any portion thereof by ICDC or any of the ICDC Parties; (b) the terms of any
Construction Agreement or subcontract; (c) the untruth or inaccuracy of any representation or
warranty made by ICDC in this Agreement, in any Request for Acceptance or in any certifications
delivered by ICDC pursuant thereto; (d) the Release, threatened release, storage, treatment,
transportation or disposal of any Hazardous Materials on, under, in, from or to the Site or any other
property through the act or omission to act of ICDC or the ICDC Parties (provided, however, that (i)
any material or component required by the Plans or the Sewer Plans to be installed in connection
with the construction of any Facility or IRWD Reimbursable Facility shall not be considered to be
Hazardous Materials even if said Plan- or Sewer Plan specified material or component contains
Hazardous Materials, and (ii) ICDC shall not be obligated under this Section 5.4.1 for the disposal
of Hazardous Materials that are taken to a disposal site chosen by the City, which disposal site shall
be appropriate for the material to be disposed of and shall, to the extent possible, be a reasonable
distance from the Site); (e) any act or omission of ICDC or the ICDC Parties in connection with the
construction, installation or maintenance of the Work or any portion thereof, including without
limitation noncompliance with any covenants made by ICDC in this Agreement (e.g., failure to
comply with any prevailing wage or other provision of Sections 2.2 or 2.3); and (f) any breach by
ICDC of any of its representations, warranties, covenants or obligations set forth in this Agreement.
If ICDC fails to defend any Claim pursuant to its obligations hereunder, the City shall have the
right, but not the obligation, to defend the same and charge all of the direct or incidental costs of
such defense, including any third party fees or costs paid for by the City (including but not limited
to bills from the City's contract City Attorney related to this Agreement), to and recover the same
from ICDC.
5.4.2 Limitations on Section 5.4.1 Obligations. Notwithstanding the
foregoing, ICDC shall not have any obligations under Section 5.4.1 to the extent that any Claim
arises as a result of or by reason of or as a consequence of. (a) the negligent preparation of the Plans
for any Facility or IRWD Reimbursable Facility provided to ICDC by the City; (b) the use or
operation of a Facility or IRWD Reimbursable Facility after the Acceptance Date of the Facility or
the acceptance of an IRWD Reimbursable Facility by IRWD, unless such Claim results from (i)
defective Work or the defective or improper construction or installation of the Work on such
Facility or IRWD Reimbursable Facility or (ii) maintenance of the Work or any Facility or IRWD
Reimbursable Facility prior to the Acceptance Date; (c) to the extent required by California Civil
Code Section 2782, the active negligence or willful misconduct of any of the City Indemnitees; (d)
any breach by the City of any of its representations, warranties, covenants or obligations set forth in
this Agreement; or (e) any pre-existing condition, pre-existing circumstance or pre-existing
Hazardous Material on the Site or any adjoining property provided that ICDC and/or the ICDC
Parties do not cause any additional Release of such pre-existing Hazardous Material.
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5.4.3 Survival. The provisions of this Section 5.4 shall survive the
termination of this Agreement until the expiration of the applicable statute of limitations for such
Claims.
Section 5.5 Indemnification by City
5.5.1 Indemnification & Other Obligations. The City shall protect,
indemnify, defend (with counsel reasonably acceptable to ICDC) and hold ICDC, and all Persons
controlling or controlled by such entity, together with their respective owners, shareholders,
partners, members, divisions, officers, directors, employees, representatives and agents (the "ICDC
Indemnitees"), harmless from and against any and all Claims, whether incurred by or made against
or recovered or obtained from any of the ICDC Indemnitees, that arise as a result of or by reason of
as a consequence of either or both (a) the Plans prepared by or on behalf of the City, and (b) any
breach by the City of any of its representations, warranties, covenants or obligations set forth in this
Agreement, subject to the limitations in Section 6.3 below. Notwithstanding the foregoing, in the
event that the defense of a Claim requires that multiple ICDC Indemnitees be defended
concurrently, the City shall be permitted to satisfy its defense obligations hereunder through the use
of a single counsel reasonably acceptable to ICDC.
5.5.2 Limitations on Section 5.5.1 Obligations. Notwithstanding the
foregoing, the City shall not have any obligations under Section 5.5.1 to the extent that any Claim is
caused by or as a result of (a) the performance of the Work by ICDC or the ICDC Parties that is not
as a result of negligence in the preparation of the Plans provided by the City, (b) the maintenance of
the Facilities or IRWD Reimbursable Facilities by ICDC or the ICDC Parties prior to the
Acceptance Date, (c) the use, generation, treatment, manufacture, procurement, storage,
transportation, Release and/or threatened Release of any Hazardous Materials on, under, in, from or
to the Site caused by ICDC or the ICDC Parties in connection with the construction of the Facilities
or the IRWD Reimbursable Facilities other than for any Hazardous Materials that may be contained
in the materials or components of the Facility or IRWD Reimbursable Facility as required by the
Plans or the Sewer Plans (provided, however, that ICDC shall not be deemed a generator of
Hazardous Materials or responsible for any Hazardous Materials not brought onto the Site by ICDC
or the ICDC Parties so long as ICDC disposes of same at a disposal site chosen by the City, which
disposal site shall be appropriate for the material to be disposed of and shall, to the extent possible,
be a reasonable distance from the Site), (d) the active negligence or willful misconduct of ICDC or
any the ICDC Parties, or (e) any breach by ICDC of any of its representations, warranties,
covenants or obligations set forth in this Agreement.
5.5.3 Survival. The provisions of this Section 5.5 shall survive the
termination of this Agreement until the expiration of the applicable statute of limitations for such
Claims.
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ARTICLE VI
REMEDIES; TERNUNATION; DAMAGES
Section 6.1 Termination for Cause by City
6.1.1 Grounds for Termination for Cause by City. The following events
shall be deemed "Cause" for termination and shall constitute grounds for the City, at its option, to
terminate this Agreement for Cause:
(a) Voluntary Bankruptcy Filing. ICDC shall voluntarily file for
reorganization or other relief under any Federal or State bankruptcy or insolvency law;
(b) Involuntary Bank uptcy Filing. ICDC shall have any
involuntary bankruptcy or insolvency action filed against it, or shall suffer a trustee in bankruptcy
or insolvency or receiver to take possession of the assets of ICDC;
(c) Abandonment of Construction. Except to the extent that
ICDC's obligation to construct the Facilities is suspended by an Authorized Extension or delayed as
a result of failure by the City to complete any backbone infrastructure facilities for which it is
responsible, ICDC shall abandon or substantially suspend construction of the Facilities or any
IRWD Reimbursable Facilities for a period of one hundred and eighty (180) consecutive calendar
days; provided, however, that the foregoing period shall be tolled for each of the following time
periods: (i) the time elapsed between ICDC's completion of the ICDC Pre -Paving Work and the
completion by the City of the first phase of the Warner Avenue Street & Median Improvements
described in Section 1 of Exhibit F and (ii) the time elapsed between ICDC's completion of the
raising of manhole covers and valves with respect to the Warner Avenue Facility and the date the
City completes the Warner Avenue Street & Median Improvements (which determination shall be
made by the Director).
(d) Material Breach of Agreement. ICDC shall breach any
material covenant or default in the performance of any material obligation required of it under this
Agreement, or any representation or warranty of ICDC set forth herein or in any certifications
delivered by ICDC hereunder shall prove to have been false or misleading in any material respect
when made or deemed made;
(e) Failure to Commence Construction or Diligently Prosecute to
Completion. ICDC shall fail to commence construction of each Facility and IRWD Reimbursable
Facility in accordance with the Construction Schedule attached as Exhibit F, or, subject to a Force
Majeure event or an Authorized Extension or a delay resulting from City's failure to construct the
Warner Avenue Street & Median Improvements within the time periods set forth on Exhibit F (as
extended pursuant to the provisions of this Agreement), ICDC shall fail to diligently prosecute the
construction of each Facility and IRWD Reimbursable Facility to completion in accordance with the
Construction Schedule and, as applicable, the Plans and the Sewer Plans.
(f) Default or Failure to Pay under Construction Contracts. ICDC
shall default in its obligations under the Construction Contracts or shall fail to pay Subcontractors
for materials and labor in a timely manner in accordance with the Construction Contracts;
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(g) Assignment Without Consent. ICDC shall transfer any of its
rights or obligations under this Agreement, without the prior written consent of the City; or
(h) Failure to Complete. ICDC shall fail to Complete the
Facilities and the.IRWD Reimbursable Facilities by the time set forth in the Construction Schedule
as the same may be extended for the reasons provided in subsection (e) above.
6.1.2 Termination for Cause: Cure Rights. If the City intends to terminate
this Agreement as a result of the occurrence of any event listed in Section 6. 1.1 (i.e., for "Cause"),
the City shall first notify ICDC in writing of such intention and of the grounds for such termination.
With respect to any notice of termination for Cause delivered by the City pursuant to Section 6.1.1
,(c) through (h), ICDC shall have twenty (20) Business Days after the date such notice is received or
deemed to be received to eliminate or mitigate to the satisfaction of the City the grounds for such
termination or if such cure cannot be reasonably accomplished within such twenty (20) Business
Day period, shall have a total of ninety (90) calendar days after the date the notice of default is
received or deemed to have been received by ICDC to complete such cure, but only if ICDC has
commenced such cure within such twenty (20) Business Day period and diligently pursues such
cure to completion, or shall have such longer period of time as may be expressly agreed by the City
in its sole discretion. If, at the end of the applicable cure period (or any extension thereof), ICDC
has not eliminated or completely mitigated such grounds for termination to the satisfaction of the
City, the City may then terminate this Agreement for Cause by delivering a written notice of such
termination to ICDC. The City shall have the right to terminate this Agreement for Cause upon
provision of written notice to ICDC upon the occurrence of either of the events described in Section
6.1.1(a) or (b) and without cure period provided to ICDC.
6.1.3 City Termination Rights. Upon termination for Cause, the City may,
but shall not be obligated to, do any or all of the following: (a) take possession of the Site and all of
the materials, equipment, tools and construction thereon; (b) acquire any Facility that has not been
Completed prior to the termination date; (c) Complete the Work or any portion thereof by whatever
reasonable method the City may deem expedient or complete the acquisition, construction and
installation of any Facilities not theretofore acquired from ICDC pursuant to Section 3.2.1 and the
City may use all or any portion of the proceeds from the Fair Share Earmark Account or the
Performance Bonds to pay for such construction and installation; and/or (d) accept assignment(s) of
the Construction Contracts.
6.1.4 City Remedies in Event of ICDC Default. If this Agreement is
terminated for Cause by the City pursuant to this Section 6.1, ICDC shall have no claim or right to
any payments for any portion of the Work performed after the termination date, and the City may, at
its election, Complete all or any portion of the Facilities, in which event it may use whatever
services, materials and equipment it deems appropriate to Complete the Facilities. In addition, if
the expense to the City of Completing any Facility together with the amount previously paid to
ICDC for performance of Work on such Facility pursuant to this Agreement exceeds the Contract
Price for such Facility, then ICDC shall be liable for (a) the cost to Complete such Work in excess
of the Contract Price as amended by PCOW and all other amounts due to the Subcontractor with
respect to such Work and not then paid and (b) all additional damages, including attorneys', experts'
and consultants fees and cost, but excluding anticipatory or unearned profits, suffered by the City as
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a result of the termination for Cause by the City. The performance of the Work shall be secured by
the Performance Bonds and Payment Bonds. The City shall have all rights and remedies available
at law or equity and nothing in this Agreement is intended to limit any legal or equitable rights or
remedies of the City in the event of any failure by ICDC to perform the Work as required under this
Agreement.
6.1.5 In the event that ICDC shall fail to Complete any IRWD
Reimbursable Facilities within the Non -Parcel Site in accordance with the Construction Schedule
and in compliance with the terms of the reimbursement agreement between ICDC and IRWD for
the IRWD Reimbursable Facilities, ICDC shall cooperate with the City and shall execute all
instruments reasonably requested by the City or IRWD to: (a) allow the City to construct the IRWD
Reimbursable Facilities on the Non -Parcel Site that have not been Completed within the Non -Parcel
Site with whatever services, materials and equipment the City deems appropriate to cause
construction of such IRWD Reimbursable Facilities and (b) terminate the reimbursement agreement
between IRWD and ICDC with respect to the IRWD Reimbursable Facilities on the Non -Parcel Site
that have not been Completed.
Section 6.2 Termination of Construction Contracts
ICDC acknowledges that time is of the essence with respect to this Agreement and the
commencement and completion of construction of the Work. Accordingly, in addition to any other
rights of the City under this Agreement, if ICDC is in default of its obligations hereunder, the City
shall have the right to require ICDC to terminate any Construction Contract or, at the election of the
City, to assign to the City the rights and obligations of ICDC under the applicable Construction
Contract, in which event the City may enforce the obligations of the Subcontractor under such
assigned Construction Contract.
Section 6.3 Remedies in General; Damages Limited
ICDC acknowledges that the City would not have entered into this Agreement if it were to
be liable for significant damages under or with respect to this Agreement. Consequently, except for
(a) monetary damages that may arise from the City's indemnity obligations referenced in Section
5_5; (b) a breach of the City's representations and warranties contained in Section 5.3, provided,
however, that the amount of any damages payable pursuant to this clause (b) shall be the lesser of
(i) actual damages, or (ii) One Million Dollars ($1,000,000) less the amount of any Claim awarded
to Developer for a breach of a representation or warranty by the City under the DDA (or ultimately
determined by the trier of fact or in the course of settlement to be paid to Developer for a breach of
a representation or warranty by the City under the DDA); and (c) the payment of attorney's fees in
accordance with Section 7.5 below (which Section references Section 17.2 of the DDA), the City
shall not be liable in damages under this Agreement except as set forth in this Section. The
limitations on damages set forth in this Section shall not preclude ICDC from seeking payment for
amounts that the City is obligated to pay to ICDC pursuant to Sections 4.1 of this Agreement;
provided, however, that ICDC shall not be entitled to any damages in addition to the actual amounts
owed by the City to ICDC pursuant to this Agreement. The City shall in no event be liable for any
expectation, anticipation, indirect, consequential, exemplary or punitive damages.
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Section 6.4 Survival.
The provisions of this Article VI shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Independent Contractor
In performing under this Agreement, it is mutually understood that ICDC is acting as an
independent contractor, and not as an agent of the City. The City shall not have any responsibility
for payment to any Subcontractor, Sub -subcontractor, material supplier, material manufacturer or
vendor, or other Persons engaged by ICDC or any Subcontractor or Sub -subcontractor at any tier.
Section 7.2 Binding on Successors and Assi ns.
Neither this Agreement nor the duties and obligations of ICDC hereunder may be assigned
to any Person except in connection with an assignment of all of Developer's right, title and interest
under the DDA and in such event only to the assignee of Developer with respect to such interest;
provided, however, that the foregoing is not intended to prohibit ICDC entering into construction or
consulting contracts in connection with the construction of the Facilities or the IRWD Reimbursable
Facilities that are in compliance with all requirements of this Agreement. Such assignment shall be
subject to consent of the City in accordance with the requirements and standards set forth in the
DDA. This Agreement may be assigned by the City to any agency or instrumentality of the City,
including the Tustin Public Financing Authority or to the community facilities district issuing public
finance bonds for the Facilities, if any, without the prior consent of Developer. The agreements and
covenants included herein shall be binding on and inure to the benefit of the permitted assigns and
successors -in -interest of the Parties hereto.
Section 7.3 Amendments
This Agreement may be amended only by an instrument in writing executed and delivered
by the City and ICDC.
Section 7.4 Counterparts
This Agreement may be executed in two or more separate counterparts, each of which, when
so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and
shall be one and the same instrument.
Section 7.5 Incorporation of DDA Provisions by Reference
The provisions of the DDA contained in Sections 17.1 (except that the reference to Section
17.6 in the next to last sentence of Section 17.1 shall be deemed to refer to Section 7.6 below), 17.2,
17.5.1 (except that the reference to Section 17.5.2 contained in the second sentence of said section
shall be deemed to refer to Section 6.3 of this Agreement) 17.7 (except as the definition of Force
Majeure Delay has been modified as described in Section 1.1 of this Agreement), 17.8, 17.9, 17.13,
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17.16, 17.17, 17.19, 17.20, 17.21 and 17.23.3 are hereby incorporated into this Agreement as
though fully set forth in this Article VII and shall be in full force and effect with respect to
interpretation of this Agreement, except that any references in said Sections to (a) the term
"Agreement" used therein in reference to the DDA shall mean this Agreement, (b) the term
"Developer" shall mean ICDC, (c) the term "Schedule of Performance" shall mean the specific time
periods for performance of an act as set forth herein, (d) the term "City Manager or designee" shall
mean City Manager, the Director, or either of their respective designees, (e) the term "Effective
Date" shall mean the date first set forth on page 1 of this Agreement, and (f) the term
"Attachments" shall mean the Attachments attached to this Agreement.
Section 7.6 Notices
Any written notice, demand, consent, request or other communication to be given hereunder
to be effective shall be given to the Party entitled thereto under any method specified in Section
17.6 of the DDA except for facsimile transmission to the address set forth below. Any Party hereto
may change its address by notifying the other Party of the change of address in writing in the
manner specified in'said Section.
If to City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Director of Public Works
e-mail: dstack@tustinca.org
With a copy to: David Kendig
Woodruff Spradlin & Smart, APC
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
e-mail: dkendig@wss-law.com
If to ICDC: Irvine Community Development Company LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attention: Bryan Austin
e-mail: baustin@irvinecompany.com
With a copy to: THE IRVINE COMPANY LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attention: Legal Affairs
e-mail: gcnotices@irvinecompany.com
Section 7.7 Duplicate Orisinals
This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an
original.
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = 34 City of Tustin/
Irvine Community Development Company LLC
Section 7.8 Entire Asreement
This Agreement, including the Exhibits attached hereto and the specific sections of the DDA
referenced herein, constitutes the entire agreement between the City and ICDC with respect to the
subject matter hereof.
[Signature Page Follows]
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 35 City of Tustin/
Irvine Community Development Company LLC
[Signature Page to Reimbursement Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
Dated:
ATTEST:
By:
Erica Rabe
City Clerk Services Supervisor
APPROVED AS TO FORM:
Lin
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
M
Amy E. Freilich
"CITY"
CITY OF TUSTIN,
a California municipal corporation
By:
Jeffrey C. Parker,
City Manager
"ICRC"
IRVINE COMMUNITY DEVELOPMENT
COMPANY LLC,
a Delaware limited liability company
0
LE
Christopher L. Marsh
Division President, Apartment Development
Bryan Austin
Vice President, Project Management
Tustin ICDC Reimbursement 05-29-2013 EX FWAL.docx 36 City of Tustin/
Irvine Community Development Company LLC
EXHIBIT A
Description of Developer Backbone Improvements and IRWD Reimbursable Facilities
(All as further shown in Exhibit A-1 attached to and made part of this Exhibit A)
A. Developer Backbone Improvements:
No. Facility Reimbursement Source
1. Warner Avenue Rough Grading & Improvements
a. Rough Grading (Plans by RBF for City of Tustin R -1913A) City of Tustin
b. Storm Drain (Plans by RBF for City of Tustin D -1913A) City of Tustin
c. Dry Utilities (Plans by Moran Utilities for City of Tustin) City of Tustin
d. Domestic Water (Plans by RBF for City of Tustin: IRWD 5724)** City of Tustin
2. Park Avenue Rough Grading and Improvements
a. Rough Grading (Plans by RBF for City of Tustin R-1914) City of Tustin
b. Storm Drain (Plans by RBF for City of Tustin D-1914) City of Tustin
c. Dry Utilities (Plans by Moran Utilities for City of Tustin) City of Tustin
d. Street Improvements (Plans by RBF for City of Tustin R-1914) City of Tustin
e. Domestic Water (Plans by RBF for City of Tustin: IRWD 5724) ** City of Tustin
f. Traffic Signal Upgrade (Plans by RBF for City of Tustin: TE 534) City of Tustin
** Denotes an "Other IRWD Facility"
B. IRWD Reimbursable Facilities:
1. IRWD Reimbursable Facilities In Warner Avenue
a. Domestic and Reclaimed Water (Plans by RBF for City of Tustin: IRWD 5725) Irvine Ranch Water District
b. Sewer (Plans by Fuscoe for Legacy Villas LLC: Portion of IRWD 5910) Irvine Ranch Water District
2. IRWD Reimbursable Facilities In Park Avenue
a. Reclaimed Water (Plans by RBF for City of Tustin: IRWD 5725)
b. Sewer (Plans by Fuscoe for Legacy Villas LLC: Portion of IRWD 59 10)
3. IRWD Reimbursable Facilities (Within the Apartment Site Parcel)
a. Sewer (Plans by Fuscoe for Legacy Villas LLC: Portion of IRWD 5910)
Irvine Ranch Water District
Irvine Ranch Water District
Irvine Ranch Water District
Tustin ICRC Reimbursement 05-29-2013 EX FINAL.docx A- i EXHIBIT A
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EXKMIT B
POTENIUL CHANCE OF WORK FORM
[See attached]
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx B-1 EXHIBIT B
CITY OF TUSTIN
DATE INITIATED IN FIELD:
POTENTIAL CHANGE OF WORK ("PCOW') ACKNOWLEDGEMENT & VALUE
The purpose of this form is to acknowledge a change in work that may impact the Actual Costs and/or Construction Schedule for a Facility constructed per
the Infrastructure Construction & Reimbursement Agreement between the City of Tustin and Irvine Community Development Company LLC ("ICDC').
Upon acceptance, a Change Order will be issued.
City of Tustin Reference No.: PCOW NO:
([CDC Original PO No. — CO No.)
Subcontractor/Consultant Name:
(CO PO No.)
Project:
Facility:
Contractor. ICDC If PCOW is for Const services during construction,
ICDC's fill in the following information otherwise leave blank:
Constr. Mgr. Consultant's Contract No:
Design Firm: Consultant's Name:
POTENTIAL CHANGE OF WORK:
• Work Description:
• What Caused the Change:
• Why is this Change Outside the Original Contract Scope and Previous Change Orders:
• Plan Revision Required? ❑ Y ❑ N If yes, Delta Revision No. _ Date Approved:
• Change in Contract Time? ❑ Y ❑ N If yes: +A—Working Days
• Change in Contract Price? ❑ Y ❑ N If yes: +/- $
I. City Inspector: ICDC's Construction Manager has discussed this potential change of work with me.
(Signature)
(Print Name)
2. ICDC:
Reviewed by:
Owner Representative / Date
3. City of Tustin: In the City of Tustin's opinion the aforementioned work
a. Q Does Qualify Q Does NOT Qualify as a potential change of work.
b. City of Tustin's comments (required if representative does not concur with the potential change):
C. CHANGE OF WORK VALUE (with detailed backup attached): $
d. Recommended by:
City of Tustin Representative / Date
Date
EXI3OIT C
FORM OF CONCURRENCE LETTER
Tustin ICRC Reimbursement 05-29-2013 EX FINAL.docx C-1 EXHIBIT C
[ICDC Letterhead]
[Date]
City of Tustin
300 Centennial Way
Tustin, CA 92780
Please find enclosed the following Bid/Proposal documents for the [Facility]
of the Tustin Legacy Backbone Infrastructure to be constructed by Irvine Community Development
Company LLC ("ICIIC") pursuant to the Infrastructure Construction and Reimbursement Agreement
between the City of Tustin and ICDC dated June 4, 2013 ("Reimbursement Agreement").
1. Bid Summary for Construction
2. One (1) copy of Subcontractor Bid Submittal
3. One (1) copy of Professional Proposal
ICDC recommends award of contracts as follows:
CITY PORTION
WORK / SERVICE
VENDOR NAME
PURCHASE ORDER
AMOUNT
Construction
[cmbVendor]
[txtPONo]
[txtAmount]
N/A
[cmbVendorl]
[txtPONo1]
[txtAmountl]
Award Total:
Please indicate your concurrence of the City's acceptance of the above bid and cost of work/services
and that the above-described work is eligible for reimbursement under the Reimbursement Agreement
by signing below and returning to me.
If you have any questions, please contact me directly at (949) 720-2560.
Sincerely, CITY OF TUSTIN CONCURRENCE
Michael J. Morse
Vice President
Copy: Bid File (Task/PC ID: [cmbTaskID].)
Finance, Nick Reichert (once signed by Agency)
By: _
Name:
Title:
Date:
]EXHIBIT D
FORINT OF ASSIGNMENT AGREEMENT
[See attached]
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx D-1 EXHIBIT D
Assignment Agreement
This ASSIGNMENT AGREEMENT is made as of '20_, by and between
IRVINE COMMUNITY DEVELOPMENT COMPANY LLC, a Delaware limited liability company
("Assignor"), to the CITY OF TUSTIN, a California municipal corporation ("Assignee") based upon the
following recitals:
A. Assignor has previously entered into that certain construction contract relating to
construction of (the "Facility")
by and between Assignor and ("Subcontractor"),
a copy of which contract is attached hereto as Attachment 1(the "Construction Contract").
B. Assignee desires to acquire (i) Assignor's right, title and interest in and to the Facility
constructed under the Construction Contract, and (ii) the warranty rights of Assignor as to the Facility
under the Construction Contract, and Assignor desires to assign such rights to Assignee.
NOW, THEREFORE, in consideration of the foregoing, the covenants and agreements contained
herein and other valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. ASSIGNMENT. Effective upon the date specified in Section 2 hereof (the "Effective
Date"), Assignor assigns and transfers to Assignee all of Assignor's right, title, claim and interest in and
to (a) the Facility constructed pursuant to the Construction Contract, and (b) the warranties and guarantees
of Subcontractor as to the Facility constructed pursuant to the Construction Contract. This Assignment
is made by Assignor pursuant to the provisions of Section 2.7 of the Infrastructure Construction and
Reimbursement Agreement between Irvine Community Development Company LLC and the City of
Tustin dated as of June 4, 2013 (the "Reimbursement Agreement").
2. EFFECTIVE DATE. The Effective Date of this Assignment Agreement shall be
, 20_, which is the date that the City has entered as the "Acceptance Date" on the
Request for Acceptance referenced in Section 3.2 of the Reimbursement Agreement f, or if the
assignment is made by reason of default of Assignor under the terms of the Reimbursement Agreement,
, 20_].
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
Agreement as of the day and year first hereinabove written.
ASSIGNOR:
IRVINE COMMUNITY DEVELOPMENT COMPANY
LLC, a Delaware limited liability company
By: _
Name:
Title:
By: _
Name:
Title:
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 1 ASSIGNMENT AGREEMENT
(signatures continued on following page)
ACCEPTED BY ASSIGNEE:
CITY OF TUSTIN,
a California municipal corporation
By: _
Name:
Title:
Subcontractor Acknowledgment:
By its signature below, Subcontractor acknowledges receipt of notice of this Assignment
Agreement, and agrees that all Warranties provided by Subcontractor and its Sub -subcontractors,
vendors and material manufacturers and suppliers under the Construction Contract with respect
to the Facilities shall be deemed transferred to, and enforceable by, the City of Tustin, effective
on the Effective Date of this Assignment.
"Subcontractor"
By:
Name:
Title:
Date: , 20
Subcontractor Address and Contact Information:
Telephone:
Contractor's License No.
Tustin 1CDC Reimbursement 05-29-2013 EX FINAL.docx 2 ASSIGNMENT AGREEMENT
Attachment 1
to
Assignment Agreement
[Attach Copy of Construction Contract Being Assigned]
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx
IWX:111.3y631
FORM OF REQUEST FOR ACCEPTANCE
[See attached]
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx E-1 EXHIBIT E
REQUEST FOR ACCEPTANCE
Irvine Community Development Company LLC ("ICDC"), hereby requests that the City of
Tustin ("City") accept the Facility or Facilities described in Attachment A attached hereto in
accordance with the procedures contained in Section 3.2 of the Infrastructure Construction and
Reimbursement Agreement between the City and ICDC ("Developer") dated as of June 4, 2013 (the
"Agreement"). Capitalized undefined terms contained in this Request shall have the meanings
ascribed thereto in the Agreement. In connection with this Request for Acceptance, the undersigned
hereby represents and warrants to the City as follows:
1. ICDC Representative. The undersigned is an ICDC Representative, qualified to
execute this request for payment on behalf of ICDC and knowledgeable as to the matters set forth
herein.
2. As -Built Plans. ICDC has submitted or submits herewith to the Director as -built
drawings or similar plans for the Facilities for which City Acceptance is requested, including as
described in Section 3.2.1(a) of the Agreement and such drawings or plans and specifications, as
applicable, are true, correct and complete.
3. Facility Construction Per Plans. Each of the Facilities described in Attachment A to
this Request is "Complete," has been constructed in accordance with the Plans therefor, and in
compliance with all applicable City standards, and all applicable federal, State and local laws and the
requirements of the Agreement, and the as -built drawings or other plans and specifications
referenced in paragraph 2 above.
4. ICDC Actual Cost. The true and correct Actual Cost of each Facility for which City
acceptance is requested is set forth in Attachment A.
5. Actual Cost Backup Documentation. In connection with prior Payment Requests,
ICDC has previously submitted to the Director invoices, receipts, worksheets and other evidence of
costs that are in sufficient detail to allow the Director to verify the cost of each Facility for which
City Acceptance is requested. In addition to the maintenance costs reflected in such information,
ICDC estimates (based on prior maintenance costs or the quoted monthly maintenance cost charge
contained in its maintenance contract for such Facility) that the ongoing maintenance costs for the
Facility described herein will cost $ per month until the date of City's acceptance of the
Facility. Within thirty (30) days of City's acceptance of the Facility, ICDC and the City will meet
and review the actual costs of maintenance incurred that were not paid by the City as part of the Final
Approved Cost pursuant to Section 4.1.3 of the Agreement, after which the City shall promptly
reimburse ICDC for any shortfall in the cost of maintenance paid to ICDC (or if the City has
overpaid for any such maintenance costs when the payment pursuant to Section 4.1.3 was paid,
ICDC shall promptly reimburse the City for the amount of any such overpayment).
6. No Liens. There has not been filed with or served upon ICDC notice of any lien,
right to lien or attachment upon, or claim affecting the Facility or the acceptance thereof by the City
that has not been released or will not be released simultaneously with the payment of such obligation,
and all lien releases required pursuant to Exhibit L of the Agreement have been provided to the City.
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = 2 REQUEST FOR ACCEPTANCE
7. No Event of Termination. No event listed in the Agreement that would trigger a
default by ICDC or a right to termination for Cause by the City has occurred and is continuing or will
occur upon the making of this Request by ICDC to City.
8. Accuracy of Representations and Warranties. The representations and warranties of
ICDC set forth in Section 5.1 of the Agreement are true and correct on and as of the date hereof with
the same force and effect as if made on and as of the date hereof.
9. Hazardous Materials. ICDC represents and warrants that, prior to the date of this
Request for Acceptance: (a) neither ICDC, nor any of the ICDC Parties in connection with the Work
on any Facility or IRWD Reimbursable Facility or any portion thereof, has (i) used, generated,
treated, manufactured, procured, stored, transported or Released any Hazardous Materials (in each
case, whether accidentally or intentionally) on, under or in such Facility or IRWD Reimbursable
Facility or the Site upon which such Facility or IRWD Reimbursable Facility is located or any other
property, other than for any Hazardous Materials that may be contained in the materials or
components of the Facility or IRWD Reimbursable Facility as required by Plans or the Sewer Plans,
or (ii) transported (whether accidentally or intentionally) any Hazardous Materials to or from such
Facility, IRWD Reimbursable Facility, the Site or any other property, in violation of federal, State or
local laws governing Hazardous Materials; (b) there is not present on, under or in such Facility or
IRWD Reimbursable Facility or the Site upon which such Facility or IRWD Reimbursable Facility is
located, or any portion thereof, or any other property, any Hazardous Materials Released by ICDC or
any of the ICDC Parties in connection with construction, installation or maintenance of the Facility
or IRWD Reimbursable Facility or any portion thereof, except for (x) any types or amounts that do
not require remediation or mitigation under federal, State or local laws, ordinances, regulations, rules
or decisions, (y) those that have been remediated or mitigated in full compliance with applicable
federal, State or local laws, ordinances, regulations, rules or decisions, or (z) those contained in
materials or components of the completed Facility or IRWD Reimbursable Facility per the
requirements specified in the Plans or the Sewer Plans, and (c) ICDC has not received notice of, and
to the best of ICDC's knowledge there is not, any proceeding or formal inquiry by any Governmental
Authority with respect to the presence of Hazardous Materials on, under or in the Site, or any
structure, fixtures, equipment, or other objects thereon, or the migration thereof from or to other
property, arising out of the Work, except as follows:
The foregoing is declared under penalty of perjury to be true and correct.
IRVINE COMM JNITY DEVELOPMENT
COMPANY LLC,
a Delaware limited liability company
By: _
Name:
Title:
Date:
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 2 REQUEST FOR ACCEPTANCE
APPROVAL BY THE CITY
(Information to be completed by the City upon approval by the Director)
The Final Approved Cost of each Facility listed on Attachment A, as well as the
Acceptance Date of same, is as follows:
Final Approved Cost of Facility:
Acceptance Date of Facility:
Date:
DIRECTOR OF THE CITY OF TUSTIN
M
Name:
Title:
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 3 REQUEST FOR ACCEPTANCE
Attachment A
to
Form of Request for Acceptance
(Information to be completed by ICDC prior to submittal to the Director)
Description of Completed Facility:
2. Actual Cost Incurred by ICDC:
Tustin ICDC Reimbursement 05-29-2013 EX MAL. =
Construction Schedule
Facility
Responsible
Start
Completion
No.
Facility Work to Be Performed
Party
Date
Date
1.
Warner Avenue
Warner Avenue Rough Grading & Improvements (A. Ia.-
ld. and B. la & lb)
ICDC
08/01/13
04/30/14
Warner Avenue Street and Median Improvements
City of
Base paving and curb & tter
Tustin
05/01/14
1 09/01/14
Warner Avenue Raise manholes and valves)
ICDC
09/15/14
10/15/14
Warner Avenue Street and Median Improvements (Final
City of
cap paving, repairs, median landscaping)
Tustin
10/15/14
12/30/14
Warner Avenue (Install sidewalks, street lights and traffic
signal)
ICDC
09/15/14
03/01/15
2.
Park Avenue
Park Avenue Rough Grading & Improvements (A.2(a)-(f)
and B.2(a) &
ICDC
08/01/13
12/30/14
Notes:
Each "Start Date" is the latest start date; earlier starts are allowed.
Each "Completion Date" is latest completion date; earlier completions are allowed.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx F- I EXHIBIT F
A/-1.1 1. 31110,
FORM OF PAYMENT RE UEST
(See attached)
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx G-1 EXHIBIT G
Payment Request Form
Payment Request No.
To: City of Tustin
From: Irvine Community Development Company LLC ("ICDC")
Project: Tustin Legacy Backbone Infrastructure
Facility Name:
This Payment Request is made on , 201_ pursuant to Section 4.1.2 of
that certain Infrastructure Construction and Reimbursement Agreement between the City of
Tustin and ICDC dated June 4, 2013 (the "Reimbursement Agreement") for the portion of the
following Work that was performed in connection with the construction of the above Facility:
As to this Payment Request Contractor represents and certifies the following:
1. The amount(s) specified in this Payment Request accurately represent the hours of
labor performed, the materials supplied and the costs incurred for the portion of the Work
described above and have been performed upon or furnished to for the Facility described above.
Copies of applicable invoices and other documents evidencing the total amount expended,
incurred or due are attached to this Payment Request.
2. To the best of our knowledge, the quantities of units installed in the Facility for
the various items of Work described in this Payment Request are accurate.
3. There are no known mechanics' or materialmen's liens outstanding, and all due
and payable bills with respect to the Work have been paid or are included in the amount
requested in this Payment Request, and all lien releases required pursuant to Exhibit L to the
Reimbursement Agreement have been provided.
4. That Work for which payment is requested has passed all inspections and
approvals required by any applicable Governmental Authority.
5. Out of the funds received by ICDC under this Payment Request, ICDC agrees to
pay all due and payable bills with respect to the Work and to make all contributions or payments
required under any labor agreement applicable to ICDC's Subcontractor and Sub -subcontractors.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx I PAYMENT REQUEST FORM
6. All Work to date has been performed in accordance with the Plans except as
expressly approved by the City of Tustin under an Approved PCOW.
7. There have been no changes in the Work or the Construction Schedule, and no
extra Work, labor or materials has been ordered or contracted for, except as expressly approved
by the City of Tustin in accordance with the Reimbursement Agreement.
8. All conditions to the payment of this Payment Request as required by the
Reimbursement Agreement, including, without limitation, the delivery of all supporting
documentation required by the Reimbursement Agreement, have been fulfilled.
Dated:
Exceptions to the above representations by ICDC:
Irvine Community Development Company LLC
c
Name:
Title:
[Attach Exhibit G-1 (Invoice & Payment Summary)]
Tustin ICDC Reimbursement 05-29-2013 EJC FINAL.docx 2 PAYMENT REQUEST FORM
EXHIBIT H
MAP OF ACCESS AND S'T'AGING AREAS
[See attached]
Tustin ICUC Reimbursement 05-29-2013 EX FINAL.docx H-1 EXHIBIT H
FORM OF ACCESS AGREEM ENUSTAGING AREA LICENSE
[See attached)
Tustin ICRC Reimbursement 05-29-2013 EX FINAL.docx
License No. XX -XXX
LICENSE
AGREEMENT
between
THE CITY OF TUSTIN
and
(Insert Licensee]
for the
USE OF CERTAIN PREMISES AT TUSTIN LEGACY
(FORMER MCAS TUSTIN)
(Insert Brief Use Description)
From [insert Start Date] — [Insert Finish Date]`
* Unless otherwise specified in Agreement
Tustin 1CDC Reimbursement 05-29-2013 EX MAL. =
LICENSE FOR USE OF PROPERTY AT FORMER MCAS TUSTIN
LICENSE NUMBER
❑ WITHIN NAVY -LEASED LIFOC AREA
❑ WITHIN CITY OF TUSTIN DEED AREA ❑ CITY LAND USE AND BUILDING
OFFICIAL APPROVAL
THIS LICENSE TO USE FORMER MARINE CORPS AIR STATION (MCAS) TUSTIN PROPERTY HEREIN DESCRIBED IS ISSUED BY THE
CITY OF TUSTIN, AS THE PROPERTY'S DEED HOLDER OR AS LESSEE OF THE DEPARTMENT OF THE NAVY FOR THE PROPERTY
WITHIN THE LIAISED LIFOC AREA, OR BY THE TUSTIN PUBLIC FINANCE AUTHORITY AS THE PROPERTY'S DEED HOLDER TO THE
LICENSEE NAMED BELOW FOR THE PURPOSE HEREIN SPECIFIED UPON THE TERMS AND CONDITIONS SET FORTH BELOW, THE
GENERAL PROVISIONS AND ANY SPECIAL CONDITIONS ATTACHED HERETO. BY THE EXECUTION HEREOF THE LICENSEE AGREES
TO COMPLY WITH ALL SUCH TERMS CONDITIONS AND GENERAL PROVISIONS.
1. PROPOSED ACTIVITY
2. DATES COVERED (Inclusive)
FROM TO
[INSERT GENERAL DESCRIPTION OF ACTIVITY]
'Unless otherwise specified in Section 11.2, 11.13, 12.2
3. DESCRIPTION OF PROPERTY
[INSERT DESCRIPTION]
4. PURPOSE OF LICENSE
[INSERT PURPOSE OF LICENSE]
5. LICENSOR
5a. AUTHORIZED REPRESENTATIVES
City of Tustin
Jeffrey Parker City Manager
300 Centennial Way
300 Centennial Way, Tustin, CA 92780
Tustin, CA 92780
(714) 573-3012
6. LICENSEE [Complete legal name]
6a. AUTHORIZED REPRESENTATIVE
[Company Name]
[Name]
[Company Address]
[Title]
[Phone ]
mai ax
7. CASH PAYMENT BY LICENSEE (Payable in advance)
a. AMOUNT
b. FREQUENCY
c. FIRST DUE DATE
d. TO:
PAYMENTS DUE
City of Tustin
[INSERT]
[INSERT]
[INSERT]
Attn: Jeffrey Parker
300 Centennial Way, Tustin, CA 92780
e. LATE CHARGE if late 5 business days after due 10% of overdue amount
8. DEPOSIT FOR UTILITIES AND SERVICES (Payable in advance)
a. AMOUNT
b. FREQUENCY
c. FIRST DUE DATE
d. TO:
PAYMENTS DUE
WA
N/A
N/A
WA
e. LATE CHARGE — WA
9. SECURITY DEPOSIT— $ [INSERT DEPOSIT AMOUNT]
10. INSURANCE REQUIRED AT EXPENSE OF LICENSEE
TYPE
MINIMUM AMOUNT
DEDUCTIBLEIOTHER PROVISIONS
a. BROAD FORM COMPREHENSIVE, PUBLIC
SEE SECTION 11.
LIABILITY AND PROPERTY DAMAGE, FIRE AND
$1,000,000 for each
EXTENDED COVERAGE
occurrence
b. WORKER'S COMPENSATION
SEE SECTION 11.
R wired
11. GENERAL PROVISIONS (attached)
SEE ALSO SPECIAL PROVISIONS ATTACHED AS ITEM 12 AND HERETO MADE A PART HEREOF. IN THE EVENT OF
ANY CONFLICT WITH THE GENERAL PROVISIONS OF THE LICENSE, THE SPECIAL PROVISIONS SHALL PREVAIL AND
OVERRIDE THE GENERAL PROVISIONS.
12. EXECUTION OF LICENSE
FOR
NAME POSITION AND TITLE
SIGNATURE
DATE
CITY OF TUSTIN
JEFFREY C. PARKER
(LICENSOR)
City Manager
LICENSEE
(Signatory(les) for a
[NAME]
corporation must
[Title]
be authorized by
Board resolution)
APPROVED AS TO
DAVID KENDIG
FORM:
City Attorney
11. GENERAL PROVISIONS
11.1 Licensor hereby grants to the Licensee, [Insert Licensee], a temporary non-exclusive
License to use the Premises or facilities described in Section 11.3 of this License XX -XXX,
and depicted on Exhibit A hereto.
11.2 This License shall be commence upon the effective date of the License as noted on the
cover sheet and shall be cancellable with thirty (30) days written notice from Licensor to
Licensee unless Licensee is in Default under the terms of this License in which case the
Licensor may immediately terminate this License with written notice to Licensee, without
liability to the Licensor.
11.3 The use shall be limited to the purposes specified herein:
[Insert Description of Licensed Activities]
11.4 Licensee agrees that it is licensing said Premises in an "as is, where is", in its present
condition and subject to and without liability to Licensor, without any representation,
promise, agreement or warrant on the part of the Licensor regarding such condition and
state of repair needed for occupancy. The Licensee further acknowledges that the
Licensor shall not be liable for any latent or patent defects in the Premises.
11.5 This License shall be neither assignable nor transferable by the Licensee. Licensee shall
not, without Licensoes prior written consent, (i) assign, convey, mortgage, pledge,
encumber or otherwise transfer (whether voluntarily or otherwise) the Premises, this
License or any interest under it; (ii) allow any transfer of or any lien upon Licensee's
interest by operation of law; (iii) sublet the Premises or facilities or any part thereof; or (iv)
permit the use or occupancy of the Premises or facilities or any part thereof by anyone
other than Licensee, employees of Licensee, and its members only.
11.6 No additions to, alterations or improvements of the Premises shall be made by the
Licensee without the prior written consent of the Licensor in each and every instance
including any required permit approvals from the City of Tustin Community Development
and/or Public Works Department. In the event that Licensee desires to perform any work,
Licensee shall first submit to Licensor a written description of the proposed work, and if
Licensor requires, plans and specifications relating thereto, and obtain Licensoes written
approval prior to commencing such work. Any digging or subsurface activities of any
kind on the Premises shall also require prior written approval from the Licensor and
Department of the Navy, and if applicable, a Grading Permit from the City's Building
Division.
11.7 Insurance and Indemnification:
11.7.1 Licensee shall provide, or cause its member(s) or contractor(s) to provide,
and maintain at its own expense during the term of this License the following insurance
covering all construction proposed and any operations under this License. Such insurance
shall be provided with insurers authorized to do insurance business in the State of
California, with a rating of at least A- VI II or better according to the latest Best's Key Rating
Guide, except that the City will accept Workers Compensation Insurance rated B -VIII or
better or from the State Compensation Fund. Evidence of such insurance in the form of
Certificates and Insurer endorsements shall be delivered to Licensor as a precondition to
Tustin 1CDC Reimbursement 05-29-2013 EX FINAL.docx I LICENSE AGREEMENT
Licensor's execution of the License. The Insurer endorsements (or a copy of the policy
binder, if applicable) shall specifically identify this License and shall provide: (1) either (i)
evidence that Licensee has paid for its premium in full for any policy that is currently in
place, or (ii) that said insurance shall not be cancelled except if Licensor is given at least
thirty (30) days advance written notice of any cancellation or termination of insurance; (2)
commercial general liability insurance shall be primary to and not contributing with any
other insurance maintained by Licensor, and shall name Licensor (the City of Tustin),
Department of the Navy, and the Successor Agency to the Tustin Community
Redevelopment Agency (collectively "City insured parties"), and their respective officers
and employees as additional insureds, and shall provide that all losses shall be payable
notwithstanding any act or failure to act or negligence of Licensor, or any other person; (3)
shall contain a provision that the insurer waives any right of subrogation against the City
insured parties which may arise by reason of any payments made under a policy; and (4) if
Licensee is self-insured for Workers Compensation, Licensee shall submit to Licensor a
copy of its certification of self-insurance. All insurance shall be maintained on an
occurrence basis and shall include the following:
a. Commercial General Liability Insurance. Commercial general liability and property
damage insurance covering the Premises, including automobile liability insurance,
contractual, broad form property damage, and bodily injury or death, with a combined
single limit of not less than $1,000,000 per occurrence with respect to personal injury
or death, and $1,000,000 per occurrence with respect to property damage. If
Licensee provides claims made professional liability insurance, Licensee shall also
agree in writing (in a separate letter to be attached to this License) to purchase tail
insurance in the amount required by this License or to cover claims made within five
(5) years of the completion of Licensee's work under this License. Licensee shall
provide evidence to Licensor of the purchase of the tail insurance under this License.
b. Workers' Compensation Insurance. To the extent that Licensee has employees,
workers' compensation insurance in an amount and form meeting all applicable
requirements of the California Labor Code, covering all employees of Licensee and
all risks to such persons.
c. Deductibles. Any deductibles applicable to any insurance required hereunder shall
be in amounts reasonably acceptable to Licensor.
d. Verification of Coverage. The insurer endorsements required herein are to be signed
by a person authorized by that insurer to bind coverage on its behalf. All
endorsements are to be received and approved by Licensor before Licensor
execution of the License.
e. Failure to Obtain Insurance. Failure by Licensee to procure or maintain all required
insurance shall constitute an Event of Default, upon which Licensor may immediately
terminate this License. Licensee's operations shall be subject to suspension by
Licensor during any period Licensee fails to maintain required insurance in full force
and effect.
11.7.2 Licensee shall defend, with counsel acceptable to Licensor, indemnify, and
save harmless Licensor and its agents and employees from, and shall pay all costs,
expenses and reasonable attorney's fees for all trial and appellate levels and post
judgment proceedings in connection with, any and all claims and demands, actions,
proceedings, losses, liens, costs and judgments of any kind and nature whatsoever,
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 2 LICENSE AGREEMENT
including expenses incurred in defending against legal actions, for death or injury to
persons or damage to property and for civil fines and penalties to the extent arising out of
the occupation or use of the Premises by Licensee, its employees, agents, servants,
guests, invitees, contractors, or sublessees, including the following:
a. Any operation conducted upon or any use or occupation of the Premises by
Licensee, its officers, agents, or employees under or pursuant to the
provisions of this License or otherwise;
b. Any act, omission, or negligence of Licensee its officers, agents, or
employees;
c. The loss of, or damage to any property of Licensee by theft or otherwise;
d. Any failure of Licensee, its officers, agents, or employees to comply with the
terms or conditions of this License, or any applicable federal, state, regional
or municipal law, ordinance, rule or regulation related to the use or
occupancy of the Premises.
11.7.3 Notification of Hazardous Substances. License acknowledges and
understands that the Licensed Premises may have been used in the past for industrial
purposes and that hazardous substances may have been released on and beneath said
property. In the Department of the Navy's conveyance of the Premises to the City of Tustin,
the Navy provided notice in the Quitclaim Deed G and Environmental Restriction Pursuant to
Civil Code Section 1471, that certain hazardous substances may have been stored for one
year or more, released or disposed of on the Premises. The type and quantity of such
hazardous substances, the time at which such storage, release or disposal took place, to the
extent such information is available, and a description of the remediation action taken, if any
is contained in Exhibit B of the Quitclaim for Deed Group G. The Licensee acknowledges
and agrees that Licensee has reviewed the subject Quitclaim Deed G and all environmental
restrictions, covenants and restrictions which shall be binding on any Licensee activities on
the Premises. Pursuant to the Quitclaim Deed G, Licensee acknowledges that the Federal
Government has the right to access the Premises in any case in which a response or
corrective action is found necessary on the Premises or such access is necessary to carry
out a response action or corrective action on adjoining property. This Federal Government
action may require the Licensor to require that the Licensee vacate the License Premises for
such period of time, and to such extent, as the Federal Government may determine in good
faith is necessary to abate the danger. Neither the City of Tustin nor the Federal
Government shall be liable for the exercise of this authority. The right to enter shall include
the right to conduct tests, investigations and surveys, including where necessary drilling,
test -pitting, boring and other similar activities. Such right shall also include the right to
construct, operate, maintain or undertake any other response or corrective action as
required or necessary, including, but not limited to monitoring wells, pumping wells,
treatment facilities and the installation of associated utilities.
[Delete 11. 7.4 if license area is not within a Navy LIFOC Area]
11.7.4 For the portion of the License Area within the LIFOC Area, Licensee
acknowledges that Licensor's rights to the property arise solely under the Lease in
Furtherance of Conveyance (LIFOC) between Licensor and the United States of America
executed May 13, 2002. Notwithstanding any provisions of this License, Licensee hereby
agree as follows: (1) Licensee shall be bound by and perform all of the terms and conditions
to be performed by Licensor under the LIFOC to the extent applicable to the Premises
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = 3 LICENSE AGREEMENT
and/or Licensee's occupancy under this License; (2) Licensee shall comply with all
covenants and conditions of the LIFOC respecting Licensoe's use and occupancy of the
Premises; (3) Licensee shall not do or permit anything to be done in or on the Premises
which will cause the occurrence of a default by Licensor under the LI FOC; (4) Licensee shall
defend, indemnify and hold Licensor harmless from and against any cost, claim, liability, loss
or damage occurring by reason of Licensee's breach or default of this License, including,
without limitation, the cost of cure, loss of the LIFOC, and any attorneys' fees and
disbursements incurred in connection with the foregoing; (5) if the LIFOC expires or is
terminated for any reason, including without limitation, any default by the Licensor or United
States of America thereunder, or the United States of America's election to exercise any
right to terminate, then this License shall thereupon terminate, without any liability to
Licensor (unless such expiration or termination is caused by a material default of Licensor
under the LIFOC), as if such date were the scheduled expiration date of the term. Licensor
shall take all reasonable actions to keep the LIFOC in full force and effect during the term of
this License. Notwithstanding the preceding sentence, Licensor shall not be required to
initiate any legal action. In the event of any conflict in the Rights of Licensee under this
License and the Rights of Licensor under the LIFOC, the terms and covenants of the LIFOC
shall control. A copy of the LIFOC is attached as Exhibit C.
11.8 Damage and Destruction; Release:
11.8.1 In the event of damage or loss to any improvements situated on the
Premises, Licensee shall take all appropriate steps to erect necessary structures to preclude
unauthorized access to the Premises and otherwise mitigate hazardous and unsafe
conditions within the Premises caused by the damage and destruction. In the event that
damage and destruction to the Premises render the Premises unusable for their intended
purposes, this License shall terminate in accordance with applicable provisions herein by
written notice to Licensor. In such event, Licensee shall be responsible for removing its
property from the Premises including all hazardous materials it brought to the Premises, and
for reporting, containing, removing and cleaning up any land, air and water pollution
resulting from the damage and destruction which is attributable to Licensee's use of the
Premises. Such responsibilities will be carried out by Licensee in a timely manner with due
consideration for human health and safety and the protection of the environment.
11.8.2 Notwithstanding anything to the contrary in this Section 11, Licensee
acknowledges that Licensor has agreed not to require that Licensee provide and maintain
property insurance for the Premises. In consideration therefor, Licensee, on behalf of itself,
its members, principals, officers, elected officials beneficiaries, trustees, shareholders,
partners, heirs, personal representatives, successors and assigns (collectively, the
"Releasing Parties"), as the case may be, hereby waives the right to recover from and fully
and irrevocably releases Licensor, its officers, elected officials, employees, consultants,
agents, representatives and contractors (collectively, the "Released Parties"), from and
against any and all liabilities, claims, demands, damages, losses, claimed or anticipated
profits, expenses, disbursements, professionals' or consultants' fees and expenses,
obligations, fines, penalties, actions, causes of action, suits and costs, known or unknown,
matured or unmatured, including, without limitation, attorneys' fees and costs and expenses
of litigation, of every kind and nature (collectively, "Claims") that each of the Releasing
Parties may now have or hereafter acquire arising from or related to the damage or
destruction of any improvements located on the Premises, excepting, ,to the extent required
by California Civil Code Section 2782, those Claims which arise from the willful misconduct
or the active negligence of a Released Party. This release includes Claims of which the
Releasing Parties are presently unaware or which the Releasing Parties do not presently
Tustin ]CDC Reimbursement 05-29-2013 EX FINAL.docx 4 LICENSE AGREEMENT
suspect to exist which, if known by the Releasing Parties, would materially affect the
Releasing Parties' decision to release the Released Parties. The Releasing Parties
specifically waive the protection of California Civil Code Section 1542, which provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED THIS SETTLEMENT WITH THE DEBTOR."
In this connection and to the extent permitted by law, the Releasing Parties realize and
acknowledge that factual matters now unknown to it may have given or may hereafter give
rise to Claims or controversies which are presently unknown, unanticipated and
unsuspected, and the Releasing Parties further agree that the waivers and releases herein
have been negotiated and agreed upon in light of that realization and that the Releasing
Parties nevertheless hereby intend to release, discharge and acquit the Released Parties
from any such unknown Claims.
LICENSEE HAS AGREED TO ENTER INTO THIS LICENSE AND HAS GIVEN THE
RELEASED PARTIES MATERIAL CONCESSIONS REGARDING THIS TRANSACTION
IN EXCHANGE FOR THE RELEASED PARTIES AGREEING TO THE PROVISIONS OF
THIS SECTION 11.8.2 BY INITIALING BELOW, LICENSEE ACKNOWLEDGES THAT (A)
IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SECTION
11.8.2, (B) IT HAS HAD THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT
ITS MEANING AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND AGREED TO
THE TERMS SET FORTH IN THIS SECTION 11.8.2.
LICENSOR LICENSEE
11.9 Licensee will at all times during the use of this License promptly observe and comply, at its
sole cost and expense, with the provisions of all applicable Federal, State, and local laws,
regulations, and standards concerning environmental quality and pollution control and
abatement, with respect to its use of the Premises. Licensee covenants that it will not
improperly generate, use, or store hazardous substances or hazardous waste on the
Premises, except for hazardous materials that are contained in materials or components of
the Developer Backbone Improvements or IRWD Reimbursable Improvements as
required by the Plans for same delivered by Licensor to Licensee or as required by the
Sewer Plans for the Sewer Improvements included in the IRWD Reimbursable Facilities;
provided, however, that ICDC shall not be deemed a generator of Hazardous Materials
or responsible for any Hazardous Materials not brought onto the Site by ICDC or the
ICDC Parties so long as ICDC disposes of same at a disposal site chosen by the City,
which disposal site shall be appropriate for the material to be disposed of and shall, to
the extent possible, be a reasonable distance from the Site. Licensee shall promptly
notify the City of Tustin and supply copies of any notices, reports, correspondence, and
submissions made by Licensee to any Federal, State, or local authority, or received by
Licensee from said authority, concerning environmental matters or hazardous substances
or hazardous waste on, about, or pertaining to the Premises. Licensee shall defend,
indemnify and hold harmless the City of Tustin from and against all claims, liabilities,
losses, damages and costs, foreseen or unforeseen, which the City of Tustin may incur by
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 5 LICENSE AGREEMENT
reason of Licensee's action or non -action with regard to obligations under this paragraph,
and this provision shall survive the expiration or termination of the License.
a. Licensee shall at a minimum maintain, keep and restore the Premises to the
same condition as originally provided by the Licensor.
b. Licensee shall not make or permit to be made any use of the Premises or any
part thereof (i) which would violate any of the covenants, agreements, terms,
provisions, and conditions of this License; or (ii) which would directly or
indirectly violate any federal, state or local law, ordinance, rule or
governmental regulation; or (iii) which will suffer or permit the Premises or
any part thereof to be used in any manner or permit anything to be brought
onto or kept thereon which, in the reasonable judgment of Licensor, shall in
any way impair or tend to impair the character, reputation or appearance of
the Premises or which will impair or interfere with or tend to impair or interfere
with any of the services performed by Licensor.
c. Licensee shall not display, inscribe, print, maintain or affix on any place in or
about the Premises any sign, notice, legend, direction, figure or
advertisement, except as may be approved by Licensor in writing.
d. Licensee shall comply with all laws, enactments, rules, ordinances and
regulations of all governmental authorities relating or applicable to Licensee's
occupancy of the Premises governing use of the Premises. Licensee shall
obtain all permits and licenses required by the City of Tustin and shall pay all
required fees.
11.10 Discrimination and Equal Opportunity.
11.10.1 The Licensee covenants and agrees for itself and for every person
claiming by, through or under Licensee, that (a) it shall not discriminate against any
employee or applicant for employment on any basis prohibited by law and (b) it has
received, read, understands and agrees to be bound with respect to the entirety of the
License and Premises and by the non-discrimination covenant contained in the Federal
Deed which states as follows:
"Non -Discrimination. GRANTEE ("City of Tustin7 covenants for
itself, its successors and assigns, that it will comply with all
applicable provisions of the Civil Rights Act of 1964, section 504
of the Rehabilitation Act of 1973, and the Age Discrimination in
Employment Act of 1975 in the use, occupancy, sale or lease of
the Property. The foregoing shall not be construed to prohibit the
operation of federal or state approved programs focusing on the
special needs of the homeless, veterans, victims of domestic
violence and other classes of persons at risk, nor shall it be
construed to prohibit employment practices not otherwise
prohibited by law. The GRANTOR ("Government7 shall be
deemed a beneficiary of this covenant without regard to whether it
remains the owner of any land or interest therein in the locality of
the Property hereby conveyed and shall have the sole right to
enforce this covenant in any court of competentjurisdiction".
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = 6 LICENSE AGREEMENT
The Licensee shall provide equal opportunity in all employment practices.
11.10.2 Obligation to Refrain from Discrimination. The Licensee covenants
and agrees for itself and each and every person claiming by, through or under Licensee in
interest to the Licensed Premises or any part thereof or any of its activities under the
Licensed Premises or in construction or work that there shall be no discrimination against
or segregation of any person, or group of persons, on account of race, color, creed,
religion, sex, sexual orientation, marital status, national origin or ancestry in the License
use, occupancy, tenure or enjoyment of the Licensed Premises or in construction or work
on the Licensed Premises, nor shall the Licensee itself or any person claiming under or
through it establish -or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Licensee Premises or in construction
work on the Premises.
11.10.3 Redevelopment Law: Form of Nondiscrimination and Nonsegregation
Clauses. The Licensee shall include in each of its contract documents for any activities
undertaken in conjunction with the License or on the Premises the following non-
discrimination or non -segregation clauses in substantially the form provided:
In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself
or any person claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of
the land."
11.11 In addition to access required under other provisions of this License, the Licensor, and the
Department of Navy and their representatives shall be allowed access to the Licensed
Premises at all times throughout the term of this License and as further shown on Exhibit
A, for any purpose without prior written notice to the Licensee. The Licensee shall ensure
that the Licensor has a current roster of on-call personnel and their phone numbers.
Licensee shall have no claim against the Licensor for exercise of their rights of access
hereunder.
11.12 Violation of any requirement listed in Section 11 or any of the Special Provisions identified
in Section 12 may be grounds for immediate termination of the License, at no cost or
liability to the Licensor at Licensor's sole discretion.
11.13 Termination and or Vacation. Licensor, its assignees or successor(s) may terminate this
License XX -XXX or require temporary vacation of the Premises with 30 days written notice
to Licensee unless said Licensee is in default under the terms of this License in which
case the Licensor may immediately terminate the License upon written notice to Licensee.
11.14 Upon revocation or surrender of this License (except in the event of damage or destruction
under Section 11.8.1), to the extent directed by the Licensor, the Licensee shall remove all
temporary drainage facilities made or installed on the License Premises, and restore the
Premises to the same or as good condition as existed on the date of entry under this
License.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.doex 7 LICENSE AGREEMENT
[Section 12 includes Special Provisions that are specific to each license. The following is
a list of SAMPLE SPECIAL PROVISIONS only]
12. SPECIAL PROVISIONS
GENERAL
12.1 The location of the proposed use shall substanfially conform to Exhibit A and Section 1
of License (Proposed Activity). Any modifications will need to be provided and approved
in writing by the signatory on the Licensing Authority, or their designee and will then be
incorporated into the License Agreement by written amendment. In addition, City may
modify License with 30 -days prior written notice or immediately in the event of default
under License by Licensee.
12.2 This License shall become null and void unless the approved interim use begins within
one month of the date of final executed approval of the License including City written
approval of the required insurance.
12.3 The Licensee shall comply with all requirements of the Occupational Safety and Health
Administration.
12.4 Trash disposal shall comply with CRBR Incorporated and City of Tustin standards.
12.5 The Licensee shall be required to have and maintain a valid City of Tustin Business
License.
12.6 All requirements of the City's Noise Ordinance (Chapter 6 of the Tustin City Code) shall
be met at all times.
12.7 The Licensee may not access any other areas on the adjacent Tustin Legacy properties
and may not enter any of the buildings on the Tustin Legacy site for any purpose.
12.8 The applicant shall ensure controlled access to the site is maintained via Gate [Insert
Gate #] per Exhibit A. [Insert Gate #] is the Licensee's sole authorized access to the site
and will be response for ensure that no unauthorized persons or vehicles access the
overall Tustin Legacy property. The Licensee shall ensure the gate remain closed all
times while not in use. Licensee understands and agrees that this access may be
disturbed in the future. The City makes no guarantees that there will be continuing
access that can be provided at the current location.
12.9 Except for ingress and egress, the Licensee must keep the vehicle gates and adjacent
roadway free and clear at all times. The applicant shall install a temporary (mobile)
chain-link fence around the site as shown on Exhibit A at its sole cost and expense
subject to inspection and approval of the installation by the Licensor. The Applicant shall
remove said installation upon termination of this License Agreement. The vehicle gate
shall be installed to open into the parking lot so as not open outward and obstruct the
internal circulation access route between the site and Tustin Ranch Road.
12.10 Security and access to Tustin Legacy is currently performed by the City of Tustin Police
Department. The City of Tustin is not responsible for providing security services for the
Licensee, the Licensee's equipment or property, or the site during the license period.
Access to the license site shall be permitted only during daylight hours only from 7:00
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx 8 LICENSE AGREEMENT
a.m. until 6:00 p.m., Monday through Friday, 9:00 a.m. until 5:00 p.m. on Saturdays.
The Licensee is responsible for securing the site, including keeping the vehicle gate
closed and locked during hours when use of the site is not permitted.
12.11 WAIVER OF CLAIMS. As a material part of the consideration to be rendered to CITY for
this LICENSE, LICENSEE hereby waives any and all claims or causes of action against
CITY, its officers, agents, or employees which it may now or hereafter have for damages
to, loss of, or theft of LICENSEE's vehicles or other property anywhere in, about, or on
the BASE, including, but not limited to, the PREMISES, from any cause whatsoever,
unless such damage, loss, or theft results from the sole negligence, active negligence or
willful misconduct of CITY, its officers, agents, or employees (except to the extent that
any negligence or willful misconduct of City may be limited by California Civil Code
Section 2782).
12.12 BAILEE DISCLAIMER. LICENSEE acknowledges and agrees that CITY has granted its
permission for use of the PREMISES only for the purposes and in accordance with the
provisions of this LICENSE. By entering into this LICENSE, CITY is not agreeing in any
manner to accept obligations or responsibility for the safekeeping of the vehicles or other
property of LICENSEE or of LICENSEE's agents, contractors, officers, employees or
invitees. This LICENSE is not a contract for bailment or deposit of goods for safekeeping
and CITY in no manner whatsoever purports to be a bailee.
12.13 The interim use shall be discontinued and the site cleared of all debris, and stored items
upon termination of the original and any written approved extension of the term of
License XX -XXX as may be granted by the Licensing Agreement authority, which in any
event shall not be later than ten (10) days following termination of this Agreement. The
site shall be returned to the same condition as existed prior to commencement of this
License as depicted in the photographs in Attachment 2 of Exhibit A, except for changes
to the Premises made in connection with construction of the Developer Backbone
Improvements and the IRWD Reimbursable Facilities in accordance with the Plans and
the Sewer Plans.
BUILDING AND SAFETY
12.14 Hours of operation shall be according to Tustin City Code Section 4616 which limits
construction activities to between 7:00 a.m. and 6:00 p.m. Monday through Friday, and
between 9:00 a.m. and 5:00 p.m. on Saturdays, and at no time on Sundays unless
otherwise approved by the City. Construction activities are prohibited on New Year's
Day, Presidenfs Day, Memorial Day, Independence Day, Labor Day, Veterans' Day,
Thanksgiving Day, and Christmas Day.
PUBLIC WORKS
12.15 The Licensee shall not alter the existing drainage patterns or drainage facilities serving
the Premises without the permission of the Licensor and City Engineer.
12.16 This development shall comply with all provisions of the City of Tustin Water Quality
Ordinance and all Federal, State, and Regional Water Quality Control Board rules and
regulations, including keeping the licensed site, and public roadways, including but not
limited to Tustin Ranch Road and Warner Avenue, clear of any dirt or mud tracked out of
the parking area.
Tustin ICRC Reimbursement 05-29-2013 EX FINAL.docx 9 LICENSE AGREEMENT
EXHIBIT A
Description of Premises
Licensed activities will occur on [Insert Description of Premises, including size of area and legal
description if available].
Attachment 1: License Area Exhibit
EXHIBIT B
Certificate of Insurance and Insurer Endorsements
EXHIBIT C
"Lease in Furtherance of Conveyance (LIFOC) between Licensor and the United States of
America, dated May 13, 2002"
[Due to the large size of the document, please contact the Licensor to obtain a copy for review.]
EJMBIT J
CONSTRUCTION CONTRACT TERMS
ICDC shall include the following provisions into any Construction Contract it enters with a
Subcontractor for performance of Work in connection with the construction of any Facility:
Notwithstanding anything in this Contract to the contrary, the parties to this Contract agree
as follows:
(a) Construction Guidelines. Subcontractor and all of its employees, representative,
contractors, suppliers and other invitees (collectively, the "Subcontractor Parties") shall
comply with the construction guidelines and any other rules and regulations of ICDC and
the City of Tustin ("City") applicable to the site where the Work is to be performed (copies
of which guidelines, rules and regulations will be provided by Contractor to Subcontractor).
(b) Insurance. Prior to any entry onto the Site, Subcontractor shall obtain, and maintain
in full force and effect during the term of this Subcontract, insurance coverage as set forth in
the Insurance Requirements Exhibit attached to the Contract, and shall require all the
Subcontractor Parties (i.e., Sub -subcontractors) to obtain and maintain the coverages
specified in Section 5 of said Insurance Requirements Exhibit.
(c) Bonds. Subcontractor shall provide payment and performance bonds in the full
amount of the Contract Price that guarantee the payment of all Sub -subcontractors, laborers,
suppliers and materialmen and that guarantee the performance and completion of the Work
on the Facility, which bonds shall be issued by a licensed surety in the State of California
acceptable to ICDC. The bonds shall be in the form provided by ICDC, which shall be the
same bond forms as ICDC uses in connection with its Reimbursement Agreement with the
City. ICDC, Legacy Villas LLC and the City of Tustin shall each be named as co -obligees
under each bond provided by Subcontractor.
(d) Indemnification. Subcontractor agrees to indemnify, defend, protect and hold
harmless ICDC, Legacy Villas LLC and the City ("Indemnified Parties") (with counsel
reasonably acceptable to the affected Indemnified Party or Parties) and the City's elected
and appointed officials, employees, consultants, contractors and agents and all the other
indemnified parties identified in the Contract harmless from and against any all claims,
actions, causes of action, demands, orders, or other means of seeking or recovering losses,
damages, liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses and
consultants and court and litigation costs), costs and expenses attributable to compliance
with judicial and regulatory orders and requirements, fines, penalties, liens, taxes, or any
type of compensation whatsoever, direct or indirect, known or unknown, foreseen or
unforeseen, whether incurred by or made against or recovered or obtained from any of such
parties ("Claim") , that arise as a result of or by reason of or as a consequence of (i) the
construction, installation or maintenance of the Work on the Facility or any portion thereof
by Subcontractor and the other Subcontractor Parties; (ii) all other activities on and use of
the Site by Subcontractor and the other Subcontractor Parties; (iii) any breach by
Subcontractor of any of its representations, warranties, covenants or obligations set forth in
the Contract; (iv) the releasing, or threat of releasing, spilling, leaking, pumping, pouring,
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = J-1 EXHIBIT J
emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing or
dumping into the environment, storage, treatment, transportation or disposal of any
Hazardous Materials on, under, in, from or to the Site or any other property through the act
or omission to act of Subcontractor or the Subcontractor Parties; and (v) any act or omission
of the Subcontractor or the Subcontractor Parties in connection with the construction,
installation or maintenance of the Work or any portion thereof. If Subcontractor fails to
defend any Claim pursuant to its obligations hereunder, the City shall have the right, but not
the obligation, to defend the same and charge all of the direct or incidental costs of such
defense, including any third party fees or costs paid for by the City (including but not
limited to bills from the City's contract City Attorney related to this Agreement), to and
recover the same from Subcontractor.
(e) Repair of Damage. Subcontractor shall repair any damage to the property of the
Indemnified Parties or any other Person caused by Subcontractor or the Subcontractor
Parties during the course of Subcontractor's performance of the Work and any other
activities and operations on the work site.
(f) Assignment. Subcontractor agrees that if the Reimbursement Agreement between
ICDC and the City is terminated and ICDC assigns its rights under the Contract to the City
and such assignment is accepted by the City, Subcontractor shall continue to perform its
obligations under the Contract if the City is substituted in place of ICDC; provided,
however, that the City shall not be responsible for any breaches or defaults of ICDC under
the Contract that occurred prior to the date of such assignment to the City. Upon such
assignment and acceptance by the City, ICDC will be relieved of all of its obligations under
the Contract arising after the date of such assignment.
(g) Third Party Beneficiaries. Subcontractor acknowledges and agrees that (i) the City,
ICDC and the other indemnitees identified in the indemnification provision of the Contract
shall be third party beneficiaries of this Subcontract as to all obligations owed by
Subcontractor as described in this Addendum, as well as any express or implied warranties
of Subcontractor under this Contract, (ii) neither ICDC nor the City shall be deemed to be a
guarantor of Subcontractor's obligations under this Contract, and (iii) except for obligations
arising after the assignment to the City of the Contract pursuant to subsection (f) above, the
City shall not be bound by any obligations owed by ICDC to Subcontractor under this
Contract.
(h) CoWliance with Law. Subcontractor shall be required to comply with all applicable
laws, ordinances and regulations in its performance of Work on any Facility, including but
not limited to applicable provisions of the California Labor Code regarding public works
contracts and payment of prevailing wages.
(i) Independent Contractor. Subcontractor shall be deemed to be an independent
contractor retained by ICDC to perform the Work, and nothing contained in this Contract
shall create any contractual relationship between the City and Subcontractor, Sub -
subcontractor, vendor, material supplier or laborer or any other Person retained by
Subcontractor or by any of the foregoing, at any tier, or their respective officers, employees
or agents.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx J-2 EXHIBIT J
6) Warranties. Subcontractor represents and warrants to ICDC that any materials,
supplies, products and equipment funnished under this Contract will be new unless otherwise
specified, and that any of the Work will be of good workmanship and quality, free from
faults and defects and in strict conformance with the Contract Documents, the standards in
the industry, all applicable laws, ordinances and regulation, including without limitation the
Uniform Building Code, and any manufacturer's recommendations. Any of the Work not
conforming to same may be considered defective. If required by ICDC, in ICDC's sole
discretion, Subcontractor shall furnish satisfactory evidence as to the kind and quality of
such materials, supplies, products and equipment. If any manufacturer or supplier of any
such materials, supplies, products or equipment furnishes a guarantee or warranty for a
period in excess of one year from final completion, then Subcontractor's warranty pursuant
to this Article shall be deemed to extend to it for a like period. Prior to final completion of
the Work, Subcontractor shall deliver to ICDC copies of any guarantees and warranties
relating to the Project, together with duly executed instruments properly assigning same to
ICDC. Subcontractor shall bind copies of the guarantees and warranties together in a single
volume, grouped by trade and properly indexed. Subcontractor shall assign to ICDC or any
purchaser from or assignee of ICDC the guarantees and warranties of Subcontractor's Sub -
subcontractors, suppliers and representatives and any other rights of any kind against any
Persons. Such assignment will not relieve Subcontractor of any of its other obligations
contained in the Contract Documents. No Final Acceptance by ICDC or the City shall
operate as a waiver or release with respect to any warranties applicable to the Work or the
Facilities or any rights or remedies pertaining thereto.
Subcontractor warrants that any and all portions of the Work will be free from any defects in
material and workmanship for a period of one year from the Date of Acceptance of the
Facility by the City (or in the case of landscape improvements, one hundred and twenty days
after completion of the Work), which warranty shall survive the expiration or earlier
termination of this Contract. As part of the warranty, Subcontractor agrees to commence the
repair or replacement of any defective material or equipment and the performance of related
labor necessary to correct any such defect in the Work within three days after receipt of
notice of the defect and thereafter to diligently prosecute any corrective work to completion,
all at Subcontractor's sole cost and expense. Upon failure of Subcontractor to do so, ICDC
may, in ICDC's reasonable discretion, furnish or secure any materials and labor necessary to
correct any defect. Any loss caused by said failure of Subcontractor, including without
limitation compensation for additional professional services, shall be at Subcontractor's sole
cost and expense.
Nothing in the Contract Documents shall in any way limit the right of ICDC to assert claims
for patent or latent defects in the Work or loss caused by them for the longest applicable
period of limitations prescribed by California law. Nothing in the Contract Documents shall
be construed to establish a period of limitation with respect to any other obligation of
Subcontractor or claim of ICDC under the Contract Documents.
Subcontractor acknowledges and agrees that prior to Final Acceptance of any Facility by
ICDC, that ICDC shall assign to the City any and all warranties or guarantees which
Subcontractor is required to provide or obtain pursuant to the Construction Contract,
including, but not limited to, Sub -subcontractors and manufacturers, and Contractor agrees
to perform the Work in such a manner so as to preserve any and all such warranties. The
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx J-3 EXHIBIT J
above warranties and guarantees shall remain in effect for a period of one (1) year
commencing from the date of Final Acceptance of the Work by the City (or, in the case of
landscape improvements, one hundred and twenty (120) days after Completion thereof).
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx J-4 EXHIBIT J
SUBCONTRACTOR INSURANCE REQUIREMENTS
Prior to commencement of any Work under this Contract, Subcontractor shall, at Subcontractor's
sole cost, comply with the following insurance requirements:
1. General Requirements.
a. Carrier Requirements. All insurance to be carried by Subcontractor will be
maintained by Subcontractor at its cost with insurance carriers approved to do business in
California, having a general policyholders rating of not less than an "A-" and financial rating of not
less than "VIII" as currently rated by A.M. Best Company, or such other ratings as agreed upon in
writing by ICDC in ICDC's Discretion.
b. Insurance Limits: No Limitation of Liability. Subcontractor may provide the
required insurance in whole or in part through a policy or policies covering other liabilities and
projects of Subcontractor; provided, however, that any such policy or policies shall satisfy all of the
requirements set forth in this Exhibit, including the endorsements described below. The required
insurance limits stated in this Insurance Exhibit are minimum limits. Nothing contained in this
Exhibit is to be construed as limiting the type, quality or quantity of insurance Subcontractor should
maintain for its own protection. The carrying of insurance as specified herein shall not be construed
to limit Subcontractor's liability under the Construction Contract or as a matter of Law. Nothing in
this Insurance Exhibit shall be deemed to place any responsibility on ICDC for ensuring that the
required coverages are sufficient for the conduct of Subcontractor's business.
C. Evidence of Insurance. As evidence of the insurance required by this Insurance
Exhibit, and except as otherwise provided below, ICDC will accept certificates of insurance from
Subcontractor's insurance broker (and, where required below, endorsements from Subcontractor's
insurance carrier) and other evidence of insurance acceptable to ICDC, in ICDC's sole discretion,
showing the required coverages for the applicable insurance required of Subcontractor and
Subcontractor's officers, employees, agents, representatives, as well as any Sub -subcontractor
performing any portion of the Work for or on behalf of Subcontractor (collectively,
"Subcontractor's Representatives") in force for the specified periods. ICDC has the right to
obtain certified policies from Subcontractor and Subcontractor's Representatives and their
insurance carriers as ICDC in its sole discretion deems necessary. Such evidence shall be delivered
to ICDC promptly upon execution of this Contract, or prior to commencement of Work, whichever
earliest occurs, and show specifically the amount of the deductible or SIR under each policy. Each
policy, certificate and endorsement shall be subject to approval by ICDC in its sole discretion.
d. Changes in Coverage. In no event will any insurance required hereunder be
amended or reformed or rescinded or terminated or otherwise changed or allowed to lapse prior to
the earlier of the completion of the Work pursuant to the provisions of this Contract or termination
of the Contract or such longer period as may be specified in this Exhibit. Insurer endorsements (or
a copy of the policy binder, if applicable) shall specifically identify this Contract and shall provide:
that said insurance shall not be cancelled except if Subcontractor is given at least thirty (30) days
advance written notice of any cancellation or termination of insurance. The foregoing requirement
may also be satisfied upon provision of evidence by the insurer that Subcontractor has paid for its
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx K-1 EXHIBIT K
premium in full for any policy that is currently in place. In the event (i) any policy expires or is
canceled before the expiration of this Contract, or (ii) any policy is amended so that the required
coverages are reduced or otherwise changed to the detriment of ICDC or any named insured,
Subcontractor shall immediately bring such insurance into compliance with the requirements of this
Contract and deliver new certificates and endorsements (and policies, if requested by ICDC) to
ICDC upon the renewal, replacement or modification of such policy(ies). If Subcontractor fails to
comply with the foregoing requirements, then ICDC reserves the right, but shall have no obligation,
to procure such policy(ies) and to deduct the cost thereof from any sum due Subcontractor under
this Contract, and Subcontractor shall fully cooperate in the purchase of such insurance.
e. SIRS and Deductibles. ICDC shall be given the opportunity to approve and, in
ICDC's Discretion, disapprove, the amount of any proposed self-insured retention ("SIR") or
deductible. If Subcontractor, with ICDC's approval, elects to maintain an SIR or deductible with
respect to the insurance required by this Insurance Exhibit, it shall not apply to the additional
insureds listed below and no such additional insured shall be obligated to reimburse such SIR or
deductible or to pay Subcontractor as a reimbursable cost, any actual or imputed cost of maintaining
such SIR or deductible. Notwithstanding the foregoing, any additional insured may satisfy the SIR
or deductible on behalf of the Subcontractor or Subcontractor's Representative if the additional
insured elects to do so.
2. Reuuired COV rages: Subcontractor shall maintain the following insurance for the times
provided herein:
a. Workers' Compensation Insurance. Workers' Compensation Insurance, including
Employer's Liability, with a minimum limit of $1,000,000 or the current limit carried by
Subcontractor or the amount required to be carried by California law, whichever is greater, for all
individuals whom Subcontractor employs in carrying out the Work. This insurance shall be in strict
accordance with the requirements of the most current and applicable Workers' Compensation
Insurance Laws in effect from time to time in California. Prior to the commencement of the Work,
Subcontractor shall cause a waiver of subrogation endorsement from Subcontractor's insurance
carrier to be delivered to ICDC in form satisfactory to ICDC in its sole discretion.
b. Commercial General Liability Insurance. Commercial General Liability Insurance
on an "occurrence" basis, with a minimum combined single limit for bodily injury, property damage
and personal and advertising injury of Five Million Dollars ($5,000,000) or the current limited
carried by Subcontractor, whichever is greater, unless other limits are agreed to in writing in
ICDC's sole discretion, covering operations, independent contractors, products and completed
operations, blanket contractual liability, broad form property damage, severability of interest and
cross liability clauses, personal injury and explosion, collapse and underground hazards (X,C,U).
The limits of liability specified in this Exhibit may be provided by any combination of primary and
umbrella/excess liability insurance policies. Such policies shall be renewed annually for at least ten
(10) years after final acceptance and completion of the Work or shall provide tail coverage through
the expiration of the statute of limitations. An endorsement to such policy satisfactory to ICDC in
its sole discretion and meeting the requirements set forth in the "Additional Insured Endorsement"
section below shall be delivered to ICDC as required in the Contract. In addition, this Commercial
General Liability Insurance shall comply with the following:
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx K-2 EXHIBIT K
(i) There shall be no limitation of coverage to vicarious liability and coverage
shall extend to any independent liability of the additional insureds;
(ii) There shall be no exclusionary language or limitations of coverage relating to
soils subsidence or earth movement of any kind regardless of cause;
(iii) There shall be no exclusionary language or limitations of coverage relating to
residential construction, condominiums, multi -family or multi -unit dwellings, if applicable to the
Work;
(iv) There shall be no exclusionary language or limitations that are applicable to
the additional insured that are not also applicable to the named insured;
(v) There shall be no exclusionary language or limitations of coverage relating to
property damage relating to mold or fungus; and
(vi) There shall be a provision that defense costs are paid in addition to and do not
deplete any policy limits.
C. Automobile Liability Insurance. Automobile liability insurance (including but not
limited to owned and non -owned automobiles, as applicable) on an occurrence basis, covering all
automobiles, trucks and other vehicles and trailers used by Subcontractor in connection with the
Work, with a minimum combined single limit for bodily injury and property damage of not less
than Two Million Dollars ($2,000,000) and uninsured motorists coverage of $2,000,000, or, in each
case, the current limited carried by Subcontractor, whichever is greater.
d. Pollution Liability Insurance. Subcontractor shall maintain pollution liability
insurance covering liabilities and losses arising out of such Work. Such insurance shall: (i) provide
coverage for, at a minimum, judgments, damages, settlements, legal fees and costs, bodily injury,
property damage, remediation and emergency response costs arising out of or relating to the Work
and all liability assumed under this Contract; (ii) apply with respect to Work performed at any
location and to loading, unloading, transportation and disposal of any related materials or
substances; (iii) be issued on a "claims made" basis, and provide coverage for liabilities or losses
arising from any claim during the period from when the Work commences until at least five (5)
years after the Work is completed; (iv) provide coverage limits of at least $1,000,000 or the limit
already carried by Subcontractor for similar insurance, whichever is greater, (v) have a deductible
of no more than $25,000; and (vi) include ICDC, the City, and the Irvine Ranch Water District as
additional insureds in the manner set forth in the "Additional Insured Endorsement" section of this
Exhibit. Subcontractor shall comply with all policy warranties and shall do nothing to invalidate
coverage.
e. Transit Insurance. Subcontractor shall maintain "all risk" insurance, on a
replacement cost basis covering loss or damage to property (for which it has title or risk of loss)
which will become a final part of the Project, during its off -Project site transit and while stored or
worked upon away from the Project. ICDC shall be included as a loss payee under such policy as
its interests may appear. Said insurance shall have a self-insured retention or deductible.
f. Rental Equipment. In the event that rental of equipment is undertaken to complete or
perform the Work, Subcontractor shall be solely responsible for such rental equipment. Such
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = K-3 EXHIBITK
responsibility shall include, but not be limited to, theft, fire, vandalism and use by unauthorized
Persons. In addition to the other insurance coverage that Subcontractor is required to maintain
under this Contract, Subcontractor may elect to obtain a `rental cost reimbursement endorsement"
to provide coverage for any equipment it rents in connection with the Work.
3. Additional Insured Endorsement. ICDC and the parties described in this section shall be
included as additional insureds under the Commercial General Liability Insurance and, if Pollution
Liability Insurance is required to be maintained by Subcontractor under this Exhibit, the Pollution
Liability Insurance described above, pursuant to an endorsement to such policy(ies) in form
satisfactory to ICDC in its sole discretion. The endorsement shall list the following parties as
additional insureds: "Irvine Community Development Company LLC, The Irvine Company LLC,
Irvine Apartment Communities, L.P., Legacy Villas LLC, and all persons and entities controlling,
controlled by or under common control with such entities, together with their respective owners,
shareholders, partners, members, divisions, officers, directors, employees, representatives and
agents, and all of their respective successors and assigns; and the City of Tustin, and the Irvine
Ranch Water District, and all of their respective elected and appointed boards, officers, agents and
employees."
The policy coverage shall not contain any exclusionary language or limitations that are applicable to
any additional insured that are not applicable to the named insured.
In addition to the listing of additional insureds, the endorsement shall also provide: "This insurance
is primary and any other insurance maintained by such additional insureds is excess and shall not
be required to contribute with this insurance as respects claims or liability caused by, arising out of
or resulting from the acts or omissions or work of the named insured, or of others who per
work on behalf of the named insured. Any of such additional insureds may, at his/her/its election,
pay any self-insured retention or deductible amount in connection with any claim or liability for
which coverage is or may be provided by such insurance notwithstanding any other provision of the
policy."
4. Waiver of Subrogation. Subcontractor's release and waiver as set forth in the Contract is
intended to be binding upon the insurers of Subcontractor and shall preclude any such insurer from
subrogating to any rights or Claims of Subcontractor against ICDC and the City.
5. Subcontractor's Representatives' Insurance. Subcontractor will not permit any of
Subcontractor's Representatives to commence Work on the Project until each such Subcontractor's
Representative, as applicable, has complied with all applicable insurance requirements stated in this
Exhibit. In each of its Subcontracts, Subcontractor shall make ICDC and the other additional
insureds listed above express third party beneficiaries to such Subcontract. Each such Subcontract
shall also require Subcontractor's Representative to comply with each and every requirement of this
Exhibit applicable to Subcontractor, except with respect to the limits of such insurance which,
instead, shall be as follows, unless such Subcontractor's Representative currently maintains higher
limits, in which case such Subcontractor's Representative shall be required to maintain such higher
limits:
a. Workers' Compensation: Statutory Workers' Compensation and Employer's
Liability with the following limits: (i) bodily injury by accident: $1,000,000 each accident; (ii)
bodily injury by disease: $1,000,000 each employee; and (iii) bodily injury by disease: $1,000,000
policy limit.
Tustin ]CDC Reimbursement 05-29-2013 EX FINAL.docx K-4 EXHIBIT K
b. Commercial General Liability: $2,000,000 General Aggregate, $1,000,000 Products
and Completed Operations Aggregate; $1,000,000 Personal and Advertising Injury Liability;
$1,000,000. Any Sub -subcontractor responsible for Work involving mass grading or trenching or
other Work over five feet in depth shall carry $5,000,000 per occurrence and aggregate liability
coverages;
C. Automobile Liability: $1,000,000 each occurrence.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx K-5 EXHIBIT K
EXHIBIT K-1
PROFESSIONAL INSURANCE REQUIREMENTS
Professional shall not enter on any Site or begin any portion of the Services under any Professional Services
Agreement until it obtains all required insurance. Professional shall not permit any of its subconsultants to
begin any portion of the Services until such subconsultants have complied with all applicable insurance
requirements stated in this Exhibit.
General Requirements.
a. Carrier Requirements. All insurance to be carried by Professional shall be maintained by
Professional at its expense with insurance carriers authorized to do business in California, having a general
policyholders rating of not less than an "A-" and financial rating of not less than "VIII" in the most current
Best's Key Rating Guide or other such ratings.
b. Insurance Limits; No Limitation of Liability. Professional may provide the insurance
described herein in whole or in part through a policy or policies covering other liabilities and projects of
Professional; provided, however, that any such policy or policies shall satisfy all of the requirements set forth
in this Exhibit, including without limitation the endorsements described below (the "Insurance
Requirements"). The required coverage limits amounts stated in these Insurance Requirements are
minimum coverage limit amounts. Nothing contained in these Insurance Requirements is to be construed as
limiting the type, quality or quantity of insurance Professional should maintain for its protection or the extent
of Professional's responsibility for payment of damages resulting from its operations under this Professional
Services Agreement, nor shall anything contained herein be deemed to place any responsibility on ICDC for
ensuring that the insurance required hereunder is sufficient for the conduct of Professional's business.
C. Evidence of Insurance. As evidence of specified insurance coverage, and except as
otherwise provided below, ICDC will accept certificates of insurance from Professional's insurance broker
(and, where required below, endorsements issued by Professional's insurance carrier) showing such policies
in force for the specified periods. ICDC has the right to obtain certified policies as reasonably necessary.
Such evidence shall be delivered to ICDC within five (5) Business Days of execution of the Professional
Services Agreement or prior to commencement of any Services, whichever earliest occurs, and show
specifically the amount of the deductible or SIR under each policy. Each policy, endorsement and certificate
shall be subject to approval by ICDC in ICDC's sole discretion. Professional shall also allow ICDC to
inspect and obtain such evidence of insurance that Professional obtains from any of its subconsultants.
d. Changes in Coverage. In no event shall any insurance required under these Insurance
Requirements be amended, reformed, rescinded or otherwise changed or allowed to lapse prior to termination
of this Professional Services Agreement or any Project Agreement with Professional or such longer period as
may be specified herein. Insurer endorsements (or a copy of the policy binder, if applicable) shall
specifically identify this Professional Services Contract and shall provide that said insurance shall not be
cancelled except if Professional is given at least thirty (30) days advance written notice of any cancellation or
termination of insurance. The foregoing requirement may also be satisfied upon provision of evidence by the
insurer that Professional has paid for its premium in full for any policy that is currently in place. In the event
(i) any policy expires or is canceled before the expiration of this Professional Services Agreement or any
Project Agreement, or (ii) any policy of insurance is altered so that the coverage required by this Professional
Services Agreement is reduced or otherwise changed to the detriment of ICDC or any named insured,
Professional shall immediately bring such insurance into compliance with the requirements of this
Professional Services Agreement and deliver new certificates and endorsements (and policies if requested by
ICDC) to ICDC upon the renewal, replacement or modification of such policy(ies). If Professional fails to
Tustin ICDC Reimbursement 05-29-2013 EX FMAL. = K-1-1 EXHIBIT K -I
comply with the foregoing requirements, then ICDC reserves the right, but shall have no obligation, to
procure such insurance and to deduct the cost thereof from any sum due Professional under this Professional
Services Agreement or any Project Agreement.
e. Levels of Coverage: Deductibles. Where a coverage limit amount specked in these
Requirements is less than the current coverage limit generally carried by Professional for such insurance,
Professional shall provide coverage at the higher coverage limit. ICDC, in ICDC's sole discretion, may
approve commercially reasonable deductibles for the coverage limit amounts specified in these Insurance
Requirements. If Professional, with ICDC's approval, elects to maintain a deductible with respect to
insurance required hereunder, ICDC shall not be obligated to reimburse such deductible or pay Professional
as a reimbursable cost any actual or imputed cost of maintaining the deductible.
2. Required Coveraee: Professional shall maintain the following insurance for the periods provided
herein:
a. Workers' Compensation Insurance. Workers' Compensation Insurance, including without
limitation Employer's Liability, at a minimum limit of $1,000,000 or the amount required to be carried by
California law, whichever is greater, for all persons whom it employs in performing Services under this
Professional Services Agreement or any Project Agreement. The foregoing insurance shall be in strict
accordance with the requirements of the most current and applicable Worker's Compensation Insurance Laws
in effect from time to time in California. Prior to the commencement of any portion of the Services,
Professional shall deliver to ICDC a waiver of subrogation endorsement from the insurer in form and
substance satisfactory to ICDC in ICDC's sole discretion and precluding any such insurer from subrogating
to any rights or claims of Professional against ICDC and the City of Tustin ("City").
b. Commercial General Liability Insurance. Commercial General Liability Insurance on an
"occurrence" basis, with deductibles reasonably acceptable to ICDC, with a combined single limit for bodily
injury and property damage of $1,000,000, or current limit carried, whichever is greater, covering Ongoing
Operations, Independent Contractors, Blanket Contractual Liability, Broad Form Property Damage,
Severability of Interest and Cross Liability clauses, and Personal Injury. An endorsement to such policy
satisfactory to ICDC in ICDC's sole discretion and meeting the requirements set forth in the "Additional
Insured Endorsement" section below shall be delivered to ICDC within five (5) Business Days of entering
into this Professional Services Agreement.
C. Automobile Liability Insurance. Automobile Liability Insurance (including but not limited
to owned and non -owned automobiles, as applicable) on an occurrence basis, covering all automobiles,
trucks and other motor vehicles used by Professional in connection with the performance of the Services
under this Professional Services Agreement and any Project Agreement, with a combined single limit for
bodily injury and property damage of not less than $1,000,000, or current limit carried, whichever is greater,
and uninsured motorists coverage of $1,000,000 or limit carried, whichever is greater.
d. Professional Errors and Omissions Liability Insurance. Professional shall maintain
Professional Errors and Omissions Liability Insurance on a "claims made" basis, including but not limited to
contractual and prior acts coverage, sufficient to cover the Services under each Project Agreement, with a
coverage limit of not less than $1,000,000 per claim or current limit carried, whichever is greater, and with a
deductible amount not greater than Fifty Thousand Dollars ($50,000.00). Such insurance shall be maintained
during the term of this Professional Services Agreement and renewed annually for at least ten years
thereafter, so long as such renewable coverage is available at commercially reasonable rates. Such insurance
shall not contain any limitation or exclusion based upon the type or use of the structure or building, or for
bodily injury or property damage based on subsidence, soil or earth movement, or mold.
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = K-1-2 EXHIBIT K -I
e. Pollution Liability Insurance. In the event that all or any portion of the Services involves
inspection, testing, abatement or remediation involving or pertaining to pollution, environmental hazards or
Hazardous Materials, including asbestos, mold, fungi or dry cleaner or service station materials or
operations, then Professional shall maintain pollution liability insurance covering liabilities and losses arising
out of such Services. Such insurance shall: (i) provide coverage for, at a minimum, judgments, damages,
settlements, legal fees and costs, bodily injury, property damage, remediation and emergency response costs
arising out of or relating to the Services and all liability assumed under this Professional Services
Agreement; (ii) apply with respect to Services performed at any location and to loading, unloading,
transportation and disposal of any related materials or substances; (iii) be issued on a "claims made" basis,
and provide coverage for liabilities or losses arising from any claim during the period from when the
Services commences until at least five (5) years after the Services is completed; (iv) provide coverage limits
of at least $1,000,000 or the limit already carried by Professional for similar insurance, whichever is greater,
(v) have a deductible of no more than $25,000; and (vi) include ICRC, the Irvine Ranch Water District and
the City as additional insureds in the manner set forth in the "Additional Insured Endorsement" provision of
this Exhibit. Professional shall comply with all policy warranties and shall do nothing to invalidate coverage.
For purposes of this Professional Services Agreement, the term "Hazardous Material" shall have the meaning
set forth at the end of this Exhibit.
3. Other Requirements: The following requirements shall also apply to the Services performed under
this Professional Services Agreement and any Project Agreement:
a. Additional Insured Endorsement. ICDC and the parties described in this section shall be
included as additional insureds under the Commercial General Liability Insurance and, if such insurance is
required to be maintained by Professional under this Exhibit, the Pollution Liability Insurance described
above, pursuant to (and Consultant shall provide) an endorsement to such policy(ies) in form approved by
ICDC in ICDC's sole discretion. The endorsement shall list the following parties as additional insureds:
"Irvine Community Development Company LLC, The Irvine Company LLC, Irvine Apartment
Communities, L.P., Legacy Villas LLC and all persons and entities controlling, controlled by or under
common control with any of such entities, together with their respective owners, shareholders, partners,
members, divisions, officers, directors, employees, representatives and agents, and all of their respective
successors and assigns; and the City, and the Irvine Ranch Water District, and all of their respective elected
and appointed boards, officers, agents and employees."
The policy coverage and endorsement shall not contain any exclusionary language or limitations that are
applicable to any additional insured that are not applicable to the named insured.
In addition to the listing of additional insureds, the endorsement shall also provide: "This insurance is
primary and any other insurance maintained by such additional insureds is excess and shall not be required to
contribute with this insurance as respects claims or liability caused by, arising out of or resulting from the
acts or omissions or work of the named insured, or of others who performed work on behalf of the named
insured. Any of such additional insureds may, at his/her/its election, pay any self-insured retention or
deductible amount in connection with any claim or liability for which coverage is or may be provided by
such insurance notwithstanding any other provision of the policy."
b. Waiver of Subrogation. Any release and waiver of Professional contained in the
Professional Services Agreement is intended to be binding upon the insurers of Professional and shall
preclude any such insurer from subrogating to any Losses of Professional against ICDC or the City.
C. Professional's Subconsultants' Insurance. Professional shall require by contract that each
and every subconsultant shall obtain and maintain insurance equal to that required to be carried by
Professional. Such agreement to provide insurance between Professional and Professional's subconsultants
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = K-1-3 EXHIBIT K-1
shall make ICDC an express third party beneficiary to Professional's agreement with Professional's
subconsultants.
For purposes of this Exhibit, the term "Hazardous Materials" shall mean and include without
limitation the following:
(a) "Hazardous Substance", "Hazardous Material", "Hazardous Waste", or "Toxic
Substance" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. subsection 9601, et seq., the Hazardous Materials
Transportation Act, 49 U. S.C. subsection 5101, et seq., or the Resource Conservation
and Recovery Act, 42 U.S.C. subsection 6901, et seq.;
(b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a "Restricted
Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321
of the California Health and Safety Code;
(c) "Hazardous Material", "Hazardous Substance", "Hazardous Waste", "Toxic Air
Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501, 25501. 1,
117690 or 39655 of the California Health and Safety Code;
(d) "Oil" or a "Hazardous Substance" listed or identified pursuant to Section 311 of the
Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro
carbonic substance or by-product;
(e) A material listed or defined as a "Hazardous Waste", "Extremely Hazardous Waste",
or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California
Code of Regulations;
(fl A material listed by the State of California as a chemical known by the State to
cause cancer or reproductive toxicity pursuant to Section 25249.9(a) of the California
Health and Safety Code;
(g) A material which due to its characteristics or interaction with one or more other
substances, chemical compounds, or mixtures, damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property
to be put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the guidelines
set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel
tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. subsection 136 et seq.;
(j) Asbestos, PCBs and other substances regulated under the Toxic Substances Control
Act, 15 U.S.C. subsection 2601 et seq.;
Tustin ICDC Reimbursement 05-29-2013 EX MAL. = K-1-4 EXHIBITK-1
(k) Any radioactive material including any "source material", "special nuclear
material', `by-product material', "low-level wastes", "high-level radioactive waste",
"spent nuclear fuel' or "transuranic waste", and any other radioactive materials or
radioactive wastes, however produced, regulated under the Atomic Energy Act,
42 U.S.C. subsection 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C.
subsection 10101 et seq., or pursuant to the California Radiation Control Law, California
Health and Safety Code Section 114960 et seq.;
(1) A material regulated under the Occupational Safety and Health Act, 29 U.S.C.
subsection 651 et seq., or the California Occupational Safety and Health Act, California
Labor Code subsection 6300 et seq.; and/or
(m) A material regulated under the Clean Air Act, 42 U.S.C. subsection 7401 et seq. or
pursuant to Division 26 of the California Health and Safety Code.
Tustin ICDC Reimbursement 05-29-2013 EX FINAL.docx K-1-5 EXHIBIT K-1
EXHIBIT L
LIEN RELEASE REQUIREMENTS
A. Progress Payment Applications to Citv
With each Progress Payment Application, ICDC (the general contractor) will submit to the City:
1. Conditional and Unconditional Lien Releases from ICDC as to the work performed during the prior period;
2. Conditional and/or Unconditional Lien Releases from all subcontractors and suppliers in accordance with the
"Progress Billing" requirements on page 2 of this Exhibit.
B. Final Payment Applications to Citv
With each Final Payment Application, ICDC (the general contractor) will submit to the City:
1. Conditional Lien Release from ICDC as to the completed work. (Unconditional lien release from ICDC to be
given to City within 15 Business Days of ICDC's receipt of final payment from City.)
2. Conditional and Unconditional Lien Releases from all Subcontractors (other than from subcontractors for
which an unconditional lien release has previously been given to City) in accordance with the "Final Retention
Billings" requirements on page 2 of this Exhibit. ICDC acknowledges that the City will not provide a final
payment to ICDC until unconditional lien releases from all Subcontractors and Sub -subcontractors have been
provided by ICDC.
Note: Original (wet signature) or fax copies of releases are acceptable for Progress Payment and Final Payment
Applications.
JRC\30110.0086\443238.7 5/232013 L- l
IRVINE COMMUNITY DEVELOPMENT COMPANY LLC —
Lien Release Requirements for Bonded Construction Contracts
A. Progress Billings:
1. ICDC shall obtain conditional and unconditional releases from Subcontractor, plus conditional and
unconditional lien releases for all Sub -subcontractors as requested by ICDC.
2. Sub -subcontractor releases will generally be required as follows:
a. Conditional lien releases from all Sub -subcontractors performing 5% or more of the work as designated on
the Exhibits to the Construction Contract; and
b. Conditional lien releases from any Sub -subcontractors performing less than 5% of the work as requested by
ICDC.
3. Conditional Lien Releases are required from any Sub -subcontractors listed on the Subcontractor's current (PC -
4) billing form that have unpaid invoices at the time the progress billing is submitted by Subcontractor. If one
or more of the listed Sub -subcontractors have no unpaid invoices, Subcontractor shall submit with its progress
billing package either:
a. A $0 release from such Sub-subcontractor(s); or
b. A letter from Subcontractor attesting that such Sub-subcontractor(s) have no unpaid invoices for the current
billing period.
B. Final Retention Payment Billings:
1. In addition to its own conditional and unconditional releases, Subcontractor must provide conditional releases
for any Sub -subcontractors noted on the PC -4 billing form and others who have filed a California Preliminary
Notice. A list of Sub -subcontractors who have filed a Preliminary Notice can be obtained from the ICDC
Finance Department.
2. In order for the Final Payment request to be considered complete, all requested lien releases must be provided.
3. Joint checks will be cut for any Sub -subcontractors whose lien releases show a balance due, unless
Subcontractor notifies ICDC in writing that there is a dispute between Subcontractor and a Sub -subcontractor,
in which event no check will be issued with respect to such Sub -subcontractor. If Subcontractor is able to
resolve the dispute within 10 Business Days, ICDC will issue the joint check to Subcontractor and the
applicable Sub -subcontractor; otherwise, Subcontractor must submit the payment request again in the next
billing cycle.
JRC\30110.0086\443238.7 5/23/2013 L-2
EXHOIT M
PAYMENT REQUEST SUSMRTTAL PROCEDURES
In connection with Payment Requests submitted by ICDC to the City for progress payments under
the Reimbursement Agreement, ICDC shall provide the following:
o A billing report that identifies subcontractor and supplier invoices paid by ICDC for each
Facility and not previously reimbursed by the City
O Copies of subcontractor and supplier invoices from scanned images (invoice package includes
Subcontractor's/Supplier's invoice, ICRC billing form (PC -4), and Lien Releases in accordance
with ICDC's policy)
Copies of all fully -executed consultant contracts, construction contracts and related change
orders
o A check register showing proof of payment for all cleared checks
Copies of fully -executed Concurrence Letter and/or Potential Change of Work (PCOW) forms
as attached to respective contracts and change orders
• Billing backup by contract (contract with Concurrence Letter, change orders with PCOW,
invoice packages)
• Once a contract or change order has been submitted in a Payment Request the first time, it does
not have to be provided on subsequent Payment Requests (only invoice backup is provided)
• Invoice & Payment Summary per Exhibit G-1
o Completed Payment Request form (note: the Payment may be submitted electronically by
PDF copy to the City (ICDC shall retain a hard copy for ICDC files)
JRC130110.0086W43238.7 523/2013 M-1
FORM OF PAYMENT BOND
[See attached]
JRCi30110.0086\443238.7 5/23nO13 N-1
Bond No.
Amount
Premium
CITY OF TUSTIN
PUBLIC CONTRACT
LABOR AND MATERIALS PAYMENT BOND
KNOW ALL MIN BY THESE PRESENTS: That Irvine Community Development Company LLC,
a Delaware limited liability company and its successors and assigns, as and hereinafter referred to
collectively as "Principal", and a corporation organized and existing
under the laws of the State of _ , and duly authorized to transact surety business in the
State of California, as and hereinafter referred to as, "Surety", are held and firmly bound unto the City of
Tustin hereinafter referred to as the "City", in the sum of $ for payment of which
Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and
severally as follows:
THE CONDITION OF THE ABOVE OBLIGATION IS THAT:
WHEREAS, Principal has entered into that certain Infrastructure Construction and Reimbursement
Agreement by and between City and ICDC dated June 4, 2013, with the City to do and perform the
following, generally described work, which is more particularly described in said contract for the
construction of:
WHEREAS, Principal shall commence and complete the construction and installation of such
improvements provided in said contract; and
NOW THEREFORE, if Principal shall pay the Contractor, his subcontractor, and all persons renting
equipment or furnishing labor or materials to them for such improvements, for the full cost of such
improvements and submit amounts due under the State Unemployment Insurance Act with respect to such
labor, then this obligation shall be null and void.
PROVIDED, HOWEVER, if Principal shall not pay the subcontractor and all persons renting
equipment or furnishing labor or materials to them for such improvements for the full cost of such
improvements, or if Principal fails to submit amounts due under the State Unemployment Insurance Act
with respect to such labor, then Surety will pay for the same in an amount not exceeding the sum set forth
above, which amount shall inure to the benefit of all persons named in Civil Code Section 9100.
PROVIDED FURTHER, HOWEVER, that Surety stipulates and agrees that no change, extension of
time, alteration or modification of the contract documents or of the work to be performed there under
shall in any way affect its obligation on this bond and it does hereby waive notice of any such change,
extension of time, alteration or modification of the contract documents or of the work to be performed
there under; and
PROVIDED FURTHER, that in case suit is brought upon this bond by the City or any other person
named in Civil Code Section 9100 who may bring an action on this bond, a reasonable attorney's fee, to
be fixed by the Court, shall be paid by Principal and Surety.
JRC\30110.0086\443238.7 5/23/2013 1 CITY OF TUSTIN PAYMENT BOND
IN WITNESS WHEREOF, Principal and Surety have caused these presents to be duly signed and
sealed day of , 20_.
(Name)
BY:
(SEAL)
Attorney -in -Fact
BY:
Address of Surety:
APPROVED AS TO FORM:
City Attorney
PRINCIPAL:
BY:
(Name)
(SEAL) TITLE:
Address of Principal:
APPROVED AS TO CONTENT:
Date
City Engineer
Note: Attach proper acknowledgments for both Surety & Principal.
JRC130110.0086\443238.7 5/23/2013 2 CITY OF TUSTIN PAYMENT BOND
EXHIBIT O
FORM OF PERFORMANCE BOND
[See attached)
M
Bond No.
Amount
Premium
CITY OF TUSTIN
PUBLIC CONTRACT
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS: That , as and hereinafter referred to
collectively as "Principal" and a corporation organized and
existing under the laws of the State of , and duly authorized to transact surety business in
the State of California, as, and hereinafter referred to as, "Surety", are held and firmly bound unto the City
of Tustin, a California municipal corporation ("City") and Irvine Community Development Company LLC, a
Delaware limited liability company" ("ICDC'), as and hereinafter referred to collectively as "Obligees", in
the sum of $ for payment of which Principal and Surety bind themselves, their heirs,
administrators, successors and assigns, jointly and severally as follows:
THE CONDITION OF THE ABOVE OBLIGATION IS THAT:
WHEREAS, Principal has entered into a contract dated 20__, with ICDC to do
and perform the following, generally described work, which is more particularly described in said contract
for the construction of:
which work is
performed pursuant to that certain Infrastructure Construction and Reimbursement Agreement by and
between City and ICDC dated June 4, 2013,
WHEREAS, all of such improvements are to be constructed and installed in accordance with the plans
and specifications described, referred to and incorporated in said contract; and
WHEREAS, Principal shall commence and complete the construction and installation of such
improvements as provided in said contract; and
NOW, THEREFORE, if Principal shall faithfully perform all agreements contained in the aforesaid
contract, then this obligation shall be null and void.
PROVIDED, HOWEVER, if Principal shall not faithfully perform all agreements contained in the
hereinabove described contract and all obligations, then this obligation shall remain in full force and effect.
PROVIDED FURTHER HOWEVER, that Surety hereby stipulates and agrees that no change, extension
of time, alteration or modification of the contract documents or of the work to be performed there under shall
in any way affect its obligation on this bond and it does hereby waive notice of any such change, extension of
time, alteration or modification of the contract documents or of the work to be performed there under, and
PROVIDED FURTHER, that in case suit is brought upon this bond by the Obligees or any other person
who may bring an action on this bond, a reasonable attorney's fee, to be fixed by the Court, shall be paid by
Principal and Surety.
JRCUOI 10.0086\443238.7 5/23/2013 l CITY OF TUSTIN PERFORMANCE BOND
IN WITNESS WHEREOF, Principal and Surety have caused these presents to be duly signed and sealed this
_ day of , 20_.
(SEAL)
APPROVED AS TO FORM:
City Attorney
(SEAL)
APPROVED AS TO CONTENT:
Date
City Engineer
SURETY:
BY:
(Name)
Attorney -in -Fact
BY:
Address of Surety:
PRINCIPAL:
BY:
(Name)
TITLE:
Address of Principal:
Note: Attach proper acknowledgment for both Surety & Principal.
JRC130110.00861443238.7 5/23/2013 2 CITY OF TUSTIN PERFORMANCE BOND
EXIMIT P
ICDC BID AND AWARD PROCEDURES
ICDC shall use the following procedures in connection with the award of contracts for each Facility:
1. Prequalified Contractor List. ICDC maintains a list of ICDC prequalified contractors and consultants
from which it regularly bids construction work. The list of prequalified contractors and consultants
have gone through prequalification process with ICDC and been approved by ICDC to bid and construct
Work. ICDC shall bid work for each Facility off its list of prequalified contractors.
2. Bid Coordination Meeting. ICDC shall hold a bid coordination meeting to scope and strategize on
contract set-up, bid schedule and contractor and consultant selection.
3. Bid Package. ICDC shall prepare a formal bid package.
4. Pre -Bid Meeting Invitees. ICDC shall invite the City, IRWD, Engineers of Record and the contractors
(minimum 3, typically 5-8) and consultants (identified in step 2) to a pre-bid meeting.
5. Pre -Bid Meeting. ICDC shall convene a formal pre-bid meeting with the parties identified in step 4 in
attendance, each of whom shall receive a path to the bid package. ICDC shall chair the pre-bid meeting,
and shall have a printed agenda and have all attendees sign -in. ICDC shall provide the consultants in
attendance with a Request for Proposal (RFP) for their construction support services (e.g., Survey
Staling). The engineer of record shall present a high level overview of the project. ICDC provides an
overview of the administration of the bid process including the bid schedule (e.g., the date for bidders'
questions, date for bid addendum, and date and time for bid opening) insurance and bonding
requirements and prevailing wage requirements.
6. Bidders Ouestions. Contractors and Consultants submit bidders' questions to ICDC formally via email
in Word format. ICDC shall forward questions to Engineer of Record, who shall type a bid addendum
and email to ICDC for issuance to the Contractors and Consultants.
7. Public Bid Opening. ICDC shall conduct a public bid opening at 550 Newport Center Drive in a
specified conference room. Contractors and Consultants submit their bids / proposals to ICDC (either
via electronic bid submittal of pricing, or by hard copy pricing. If a bidder submits both electronic and
hard copy pricing, then in event of conflict between the information submitted, the electronic copy shall
prevail). The City and IRWD shall be invited to the public bid opening, at which time the bids are
opened, read out loud and recorded by hand onto a summary sheet.
8. Bid Summary. ICDC's Contract Administrator shall review the bids and prepare a bid summary.
9. Review of Bid Summary. ICDC's Contract Manager shall review the bid summary and present the
completed summary to ICDC's Vice President of Construction Administration with lowest responsible
contractor and consultant bids.
10. Bid ApMval. ICDC's Vice President of Construction Administration shall review the bids with the
ICDC Project Manager and Senior Vice President of Operations and obtain sign -off.
11. Notification of Low Bidder. ICDC's Contract Administrator shall call the low bidder (whether
contractors or consultants) to let them know that they are the low bidder.*
JRC\30110.0086\443238.7 5/232013
12. Notification of Contractors/Consultants. ICDC's Contract Administrator shall send an email to all
contractors and consultants with low bid/proposal results.*
13. Notification of City and IRWD. ICDC's Contract Administrator shall email the City and IRWD the bid
summary for initial concurrence.
14. Concurrence Letter. ICDC's Contract Administrator shall prepare the Concurrence Letter for delivery
to the City and shall assemble copies of bids and bid summary and submit to the City and IRWD for
formal approval/concurrence.
15. Notice to Proceed. After receipt of City/IRWD approval or concurrence, ICDC's Contract
Administrator shall prepare Authorizations to Proceed, Notice to Proceed and Contracts for contractor
and all consultants.
*If requested by the City or IRWD, this notification shall be delayed until after steps 13 and 14 have been
completed.
JRC130110.0086W43238.7 5/23/2013