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HomeMy WebLinkAbout2012-260 RESOLUTION NO. 9019-260 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE CAJON CREEK STORM DRAINAGE 3 IMPROVEMENTS — CREDIT AND REIMBURSEMENT AGREEMENT WITH THE 4 CALMAT COMPANY. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. The City Manager is hereby authorized and directed to execute the 7 8 Cajon Creek Storm Drainage Improvements —Credit and Reimbursement Agreement with the 9 Calmat Company (Vulcan Materials Company, West Region) as shown in said Agreement. A 10 copy of said Agreement is attached and incorporated herein as Attachment"A". 11 SECTION 2. The authorization to execute the above-referenced Agreement is 12 rescinded if the parties fail to execute it within ninety (90) days of the passage of this 13 14 Resolution. 15 /// 16 /// 17 /// 18 19 20 21 22 23 24 25 26 27 28 2012-260 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE CAJON CREEK STORM DRAINAGE 2 IMPROVEMENTS — CREDIT AND REIMBURSEMENT AGREEMENT WITH THE CALMAT COMPANY. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a joint reg 'la r meeting 6 thereof, held on the 5th day of November , 2012, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 9 MARQUEZ 10 JENKINS x 11 VALDIVIA x 12 SHORETT X 13 KELLEY x 14 JOHNSON x 15 16 MCCAMMACK x 17 18 Geor ednn Hann, City Clerk g 19 The foregoing resolution is hereby approved this (O' day of November , 2012. 20 21 • 22 Pa rick J. M is, Mayor Cit an ernardino 23 Approved as to form: 24 JAMES F. PENMAN, 25 City Attorney 26 By: „_ , 27 / 28 2012-260 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Bernardino Attn: City Manager 300 North"D" Street, 6th Floor San Bernardino, CA 92418 Exempt from Recording Fees pursuant to Gov't Code§27383 (Space above for Recorder's Use) CAJON CREEK STORM DRAINAGE IMPROVEMENTS— CREDIT AND REIMBURSEMENT AGREEMENT between CALMAT CO., a Delaware corporation, doing business as Vulcan Materials Company, West Region and CITY OF SAN BERNARDINO, a California charter law city and municipal corporation [Dated as of November 5 , 2012 for reference purposes only] -I5 V237-014--998585.1 2012-260 CAJON CREEK STORM DRAINAGE IMPROVEMENTS— CREDIT AND REIMBURSEMENT AGREEMENT This Cajon Creek Storm Drainage Improvements — Credit and Reimbursement Agreement ("Agreement") is reference dated as of November 5, , 2012, between CALMAT CO., a Delaware corporation, doing business as Vulcan Materials Company, West Region ("Vulcan") and CITY OF SAN BERNARDINO ("City"), a California charter law city and municipal corporation. Vulcan and City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. Vulcan is the owner of approximately One Thousand One Hundred (1,100) acres of property ("Vulcan Property") located in the City of San Bernardino, California, and legally described in the attached legal description (Exhibit A-1 , depicted by legal parcel in the attached depiction (Exhibit A-2) and depicted by planning area in the attached depiction (Exhibit B). The Vulcan Property is segregated into planning areas identified in Exhibit B. The Vulcan Property is undeveloped except for Planning Area L, which is used as a gravel mine. B. Vulcan intends to sell to a qualified purchaser ("Purchaser") approximately ninety (90) acres of the Vulcan Property ("Purchase Parcel"). The Purchase Parcel is identified as Planning Areas D, E and F on the Site Map. C. Vulcan expects that Purchaser will develop the Purchase Parcel for industrial purposes ("Project"). City will condition its regulatory approval of the Project on the construction of certain storm water drainage improvements ("Interim Drainage Improvements"). The Interim Drainage Improvements are generally described on the attached Exhibit C-1. D. The Interim Drainage Improvements will be of excess size and capacity and provide storm water drainage benefit to the Project, future development on the Vulcan Property and future development on other property in the surrounding area and any such property which has access to the Interim Drainage Improvements shall be deemed to be a benefitted property (collectively, the "Benefitted Property(ies)") for purposes of this Agreement. Without limiting the generality of the foregoing, the surrounding area (other than the Vulcan Property) which will be served and benefitted by the Interim Drainage Improvements (collectively, the "Surrounding Benefitted Property(ies)") are identified in attached Exhibits D-1, D-2 and D-3. Some of the Benefitted Properties are presently located outside the municipal limits of City, as shown in attached Exhibits D-1, D-2 and D-3 and such Benefitted Properties will not be subject to the provisions of this Agreement until such time as they are annexed into the municipal limits of City. E. The Interim Drainage Improvements are the primary component of a two- component system of storm water drainage improvements to provide storm water drainage benefit to the Vulcan Property and the Benefitted Properties. The second component, defined in this Agreement as the "Permanent Drainage Improvements", would connect to and extend the Interim Drainage Improvements to pre-existing storm water drainage channels and facilities. The 1 V237-014--998585.1 2012-260 combined Interim Drainage Improvements and the Permanent Drainage Improvements are collectively referred to in this Agreement as the "Combined Drainage Improvements." The Combined Drainage Improvements are generally described on the attached Exhibit C-2. F. The Permanent Drainage Improvements will also be of excess size and capacity and provide storm water drainage benefit to the Benefitted Properties, including the Surrounding Benefitted Properties. G. As more specifically described in this Agreement, Vulcan may elect to construct and dedicate the Permanent Drainage Improvements to City and/or another agency such as the County of San Bernardino ("County"), as applicable. If Vulcan does so, the amendments to this Agreement described in Section 10 will become automatically operative without the need of any further act or approval of either Party. H. City has previously prepared and adopted a Master Facility Plan ("Master Facility Plan"). The Master Facility Plan describes the public infrastructure and facilities required to provide necessary public services in City, including sewer, circulation and storm drainage services. The Combined Drainage Improvements are functionally equivalent to drainage improvements identified in the Storm Drainage Facilities section of the Master Facility Plan. I. City imposes development impact fees upon development projects within the municipal limits of City under the authority of the California Constitution, California Government Code Section 66000, et seq., and Municipal Code Chapter 3.27. Under Municipal Code section 3.27.105, City imposes and collects "Storm Drain Development Impact Fees" ("Storm Drain Impact Fees") to fund the construction of the storm drainage structures and improvements identified in City's Master Facility Plan, including facilities such as the Interim Drainage Improvements and the Permanent Drainage Improvements. J. City has previously prepared and adopted a "Development Impact Fee Calculation and Nexus Report for the Storm Drainage System for the City of San Bernardino, California (October 2006)" ("Development Impact Report"). Among other public facilities and improvements, the Development Impact Report identifies the public storm drainage facilities system described in City's Master Facility Plan and estimates their construction cost if constructed by City. The Development Impact Report identifies Project 7-E20, with an estimated cost of construction of $2,982,110, and Project 7-E21, with an estimated cost of construction of $4,505,040, for a total estimated cost of $7,487,150. The Combined Drainage Improvements are functionally equivalent to Project 7-E20 and Project 7-E21. K. Municipal Code section 3.27.140 provides that a developer who is required to pay a development impact fee in connection with the development of the developer's property is entitled to receive a credit against that fee if the developer constructs and dedicates to City or County, a facility (or portion thereof) identified in the Master Facility Plan. The amount of the credit will equal City's most recent estimated cost of constructing the dedicated facility (or portion), not to exceed the corresponding development impact fee which would be imposed in connection with the development of the developer's property. 2 V237-014--998585.1 2012-260 L. Municipal Code section 3.27.150 provides for reimbursement to a developer which constructs and dedicates public improvements which benefit property other than the developer's property. The reimbursement amount is equal to City's most recent estimated cost of constructing that portion of the public improvements which benefit the property other than developer's property, as established by the Development Impact Report. This reimbursement is in addition to the credits described in Municipal Code section 3.27.140. M. In accordance with Municipal Code section 3.27.140 and section 3.27.150, upon Vulcan's completion and acceptance of the Interim Drainage Improvements by City and/or County, Vulcan will be entitled to receive a combination of credits and reimbursement equal to Six Million Seven Hundred Thirty-Eight Thousand Four Hundred Thirty-Five Dollars ($6,738,435). If Vulcan elects to proceed with the construction of the Permanent Drainage Improvements, upon Vulcan's completion and acceptance of the Permanent Drainage Improvements by City or County, Vulcan will be entitled to an additional amount of credits and reimbursement equal to Seven Hundred Forty-Eight Thousand Seven Hundred Fifteen Dollars ($748,715), for a total amount of credit and reimbursements equal to Seven Million Four Hundred Eighty-Seven Thousand One Hundred Fifty Dollars ($7,487,150). The credits may be applied to fully offset any Storm Drain Impact Fees imposed by City against any future development project on the Vulcan Property, including the Project. In addition, Vulcan will receive reimbursements as more particularly set forth in this Agreement. OPERATIVE PROVISIONS 1. Recordation of Agreement. This Agreement may be recorded by Vulcan in San Bernardino County official records at any time after the Effective Date. 2. Effective Date; Vulcan Termination Right. A. This Agreement will become effective on the date ("Effective Date") on which it has been signed by both Parties and a fully executed counterpart original has been delivered to each Party. B. Nothing in this Agreement imposes an obligation on Vulcan to construct the Interim Drainage Improvements (or the Permanent Drainage Improvements referred to in Section 10). Vulcan may elect, in its sole and absolute discretion and at any time prior to commencement of construction of the Interim Drainage Improvements or the Permanent Drainage Improvements, to terminate this Agreement without cause and without cost, expense or liability to either Party by providing Notice to City. 3. Certain Defined Terms. A. In this Agreement, the following initially capitalized terms will have the following meanings in this Agreement: 1. "Benefitted Property(ies)" means any property which drains directly into or indirectly into the Interim Drainage Improvements or the Permanent Drainage Improvements, including the Project, future development on the Vulcan Property and future 3 V237-014--998585.1 2012-260 development on other property in the surrounding area, including the Surrounding Benefitted Properties. 2. "City" means the City of San Bernardino, California, a California charter law city and municipal corporation. 3. "County" means the County of San Bernardino, a political subdivision of the State of California. 4. "Credit Portion" means that portion of the Fee Study Value which will be credited against future Storm Drain Impact Fees payable in connection with development projects on the Vulcan Property, including the Project and the Purchase Parcel, in accord with Section 8. The Credit Portion will be reduced from time to time as Vulcan applies the Credit Portion to Storm Drain Impact Fees payable in connection with the development of the Project and the future development of the Vulcan Property. 5. "District" means the San Bernardino County Flood Control District. The District is not a party to this Agreement. 6. "Fee Study Value" means Six Million Seven Hundred Thirty- Eight Thousand Four Hundred Thirty-Five Dollars ($6,738,435), which is the amount established by the Development Impact Report as City's estimated cost to construct the Interim Drainage Improvements. This amount is subject to amendment as provided by Section 10. 7. "Full Satisfaction Date" means the date on which Vulcan has received, through (a) application of the Credit Portion as described in Section 8, (b) receipt of payments equaling the Reimbursement Portion as described in Section 9, or (c) a combination of both (a) and (b),the full Fee Study Value. 8. "General Requirements" means those rules, regulations, ordinances, specifications and requirements of City (including City standards) or the District which apply to the constructing and dedication of public improvements such as the Interim Drainage Improvements and, if applicable,the Permanent Drainage Improvements. 9. "Notice"has the meaning given to that term in Section 11. 10. "Plans and Specifications" means the drawings, blueprints, and technical specifications for construction of the Interim Drainage Improvements (and, if applicable,the Permanent Drainage Improvements). 11. "Prevailing Wage Laws" means Labor Code section 1720, et m. and the implementing rules, regulations and orders of the State Director of Industrial Relations. 12. "Interim Acceptance Date" means the date on which City and/or County accepts the completed Interim Drainage Improvements into the storm water drainage facilities system of the accepting agency, as provided by Section 7. 4 V237-014--998585.1 2012-260 13. "Interim Drainage Improvements" means those storm water drainage improvements and facilities generally described on the attached Exhibit C-1. 14. "Reimbursement Portion" means that portion of the Fee Study Value which will be reimbursed to Vulcan in accord with Section 9. The Reimbursement Portion will be reduced from time to time as Vulcan receives reimbursement payments. 15. "Permanent Acceptance Date" means the date on which City and/or County accepts the completed Permanent Drainage Improvements into the storm water drainage facilities system of the accepting agency, as provided by Section 7 and Section 10. 16. "Surrounding Benefitted Property(ies)" means any property other than the Project or the Vulcan Property which drains directly or indirectly into the Interim Drainage Improvements or the Permanent Drainage Improvements including, without limitation, any or all of the parcels of real property identified in the attached Exhibits D-1, D-2 and D-3. 17. "Vulcan" means Calmat Co., a Delaware corporation, doing business as Vulcan Materials Company, West Region. B. In addition to the terms defined in paragraph A, other initially capitalized terms used in this Agreement will have the meaning given to those terms where they first appear in this Agreement. 4. Fee Study Value Not Dependent on Actual Construction Costs. The Fee Study Value is based upon City's estimated construction costs for the Interim Drainage Improvements, as established by the Development Impact Report. The Fee Study Value, and correspondingly, the Credit Portion and Reimbursement Portion, is not subject to increase or decrease based upon the actual construction cost of the Interim Drainage Improvements as incurred by Vulcan. 5. Credit and Reimbursement Not Contingent on Specific Development Project. As of the Effective Date, Vulcan expects that the Purchaser will acquire the Purchase Parcel and develop the Project. However, the Parties' rights and obligations under this Agreement are not dependent upon the closing of the sale to the Purchaser or on the development of the Project or on any other development of the Vulcan Property. Vulcan will be entitled to the credits and reimbursement set forth in this Agreement regardless of the timing or order of development of the Vulcan Property. 6. City Approval of Design and Construction Plan. Prior to commencing construction of the Interim Drainage Improvements, Vulcan will cause the preparation of the Plans and Specifications by an appropriately qualified civil engineer, licensed to practice in the State of California and other consultants selected by Vulcan, in its sole and absolute discretion, and submit them to City for review and approval. City will review the Plans and Specifications for conformance to General Requirements (which includes City standards). 7. Construction of Interim Drainage Improvements. A. Upon approval of the Plans and Specifications and provided that all necessary easements for access, construction and maintenance have been acquired, Vulcan may, 5 V237-014--998585.1 2012-260 in its sole and absolute discretion, provide Notice to City that Vulcan has elected to construct the Interim Drainage Improvements. In the event Vulcan so elects, Vulcan will cause construction of such Interim Drainage Improvements in accordance with City-approved Plans and Specifications, at the sole cost and expense of persons other than City. Vulcan will cause to be executed and delivered those reasonable, customary and routine land improvement agreements and bonds or other securities that City requires of developers of similar public infrastructure within the municipal limits of City. If this Agreement and the terms of those other agreements conflict or are inconsistent, then the terms and requirements of this Agreement will control to the extent of the conflict or inconsistency. B. Following completion of the Interim Drainage Improvements, and upon Vulcan's written request, City will inspect the Interim Drainage Improvements to determine whether they have been completed in compliance with the Plans and Specifications. Following City's approval of the completed Interim Drainage Improvements, Vulcan will offer to dedicate the Interim Drainage Improvements to City and/or County, in accordance with City's and/or County's reasonable routine and customary policies and procedures for the acceptance of public improvements. So long as the Interim Drainage Improvements have been constructed in accordance with the Plans and Specifications, City will accept the Interim Drainage Improvements into its storm water drainage facility system and undertake responsibility for the maintenance, repair and replacement of the Interim Drainage Improvements (including any associated access agreements) from and after the date of acceptance, subject to Vulcan's continuing obligations (if any) arising under the land improvement or similar agreements described in paragraph A. C. Vulcan shall comply with all Prevailing Wage Laws applicable to the design and construction of the Interim Drainage Improvements as determined by City. D. The Parties acknowledge that some or all of the Interim Drainage Improvements may be subject to County, rather than City, approval and acceptance. As to those Interim Drainage Improvements which are subject to County acceptance, the requirements of this Agreement as to acceptance of the Interim Drainage Improvements will be satisfied and Vulcan will be entitled to receive the credits and reimbursement from City as provided for in this Agreement,upon County's acceptance. 8. Application of Credit Portion to Future Storm Drain Impact Fees. A. As provided by Municipal Code section 3.27.140 and in addition to Vulcan's reimbursement rights under Section 9, Vulcan may, in its sole and absolute discretion, apply the Credit Portion, in whole or in part, to offset, in whole or in part, the amount of any Storm Drain Impact Fees imposed against the future development of the Vulcan Property, including the Purchase Parcel and the Project. Vulcan may, in its sole and absolute discretion, assign all or any portion of the Credit Portion to the Purchaser of the Purchase Parcel or to any other purchaser of all or any portion of the Vulcan Property. City may not permit any person or entity other than Vulcan to apply all or any portion of the Credit Portion unless City has received Notice from Vulcan consenting to such application and identifying the amount of the Credit Portion assigned by Vulcan. 6 V237-014--998585.1 2012-260 B. City's obligations under this Section 8 are obligations which run with the land of the Vulcan Property and which inure to the benefit of subsequent purchasers of the Vulcan Property. C. City's obligations under this Section 8 will commence on the Interim Acceptance Date and will end on the Full Satisfaction Date. 9. Reimbursement from Developers of Benefitted Properties. A. As provided by Municipal Code section 3.27.150 and in addition to Vulcan's credit rights under Section 8, Vulcan will be paid the Reimbursement Portion as described in paragraph B. B. In order to fund the Reimbursement Portion, City will require each applicant for a permit to develop a development project on any Benefitted Property including, without limitation, any Surrounding Benefitted Property, which is at that time located within the municipal limits of City (including any portion of the Vulcan Property that is sold and developed), to either (1) produce evidence that Vulcan has assigned to such purchaser the Credit Portion related to such Benefitted Property or (2) to pay to City the Storm Drain Impact Fee which is imposed against that development project by then-current City ordinance or resolution. City will not approve any application or grant any permit for a development project on a Benefitted Property which is at that time located within the municipal limits of City (including any portion of the Vulcan Property that is sold and developed), unless (a) the applicant or permittee produces evidence that Vulcan has assigned to such person the Credit Portion related to such Benefitted Property; (b) City has received the payment of the Storm Drain Impact Fee required by this paragraph B; or (c) City is compelled by law to provide access to the Interim or Permanent Drainage Improvements and is prohibited by law from assessing the Storm Drain Impact Fee from this applicant or permittee or the subject development project. Without limiting the generality of the foregoing, City will not otherwise allow any owner of a Benefitted Property to have access to the Interim Drainage Improvements or the Permanent Drainage Improvements, unless (i) such owner produces evidence that Vulcan has assigned to such purchaser the Credit Portion related to such Benefitted Property; (ii) City has received payment of the Storm Drain Impact Fee required by this paragraph B; or (iii) City is compelled by law to provide access to the Interim or Permanent Drainage Improvements and is prohibited by law from denying such owner access to the Interim Drainage Improvements or the Permanent Drainage Improvements. The Parties acknowledge and agree that City's obligations as set forth herein apply only to Benefitted Property including, without limitation, any Surrounding Benefitted Property, that is located within the municipal limits of City. Within thirty (30) days following receipt of any Storm Drain Impact Fee required by this paragraph B, City shall pay an equal amount to Vulcan. C. The Reimbursement Portion will be payable to Vulcan regardless of whether it continues to own all or any portion of the Vulcan Property. Vulcan may, in its sole and absolute discretion, assign all or any portion of its right to receive the Reimbursement Portion and will provide Notice of any assignment to City. 7 V237-014--998585.1 2012-260 D. City's obligations under this Section 9 will commence on the Interim Acceptance Date and will end on the earlier of: (1) the fifteenth (15th) anniversary of the Interim Acceptance Date, and (2) the Full Satisfaction Date. 10. Construction of Permanent Drainage Improvements. A. Upon approval of the Plans and Specifications and provided that all necessary easements for access, construction and maintenance have been acquired, Vulcan may, in its sole and absolute discretion and at any time, provide Notice to City that Vulcan has elected to construct, or cause to be constructed, the Permanent Drainage Improvements. Nothing in this Agreement imposes an obligation on Vulcan to construct the Permanent Drainage Improvements. B. If Vulcan elects to construct and dedicate the Permanent Drainage Improvements, Vulcan will proceed to do so in accord with the requirements and procedures applicable to the design, construction and dedication of the Interim Drainage Improvements, as described Section 6 and Section 7. For purposes of the design, construction and dedication of the Permanent Drainage Improvements, all references in Section 6 and Section 7 to the Interim Drainage Improvements will be read and understood to mean the Permanent Drainage Improvements. C. Immediately upon the Permanent Acceptance Date, the following amendments to this Agreement will become applicable and effective, without need of either Party's approval or other act: 1. Section 3.A.6 will be amended to read as follows: "Fee Study Value" means Seven Million Four Hundred Eighty-Seven Thousand One Hundred Fifty Dollars ($7,487,150), which is the amount established by the Development Impact Report as City's estimated cost to construct the Combined Drainage Improvements." 2. A new defined term will be added to Section 3.A. to read as follows: "Combined Drainage Improvements" means the Interim Drainage Improvements and the Permanent Drainage Improvements, collectively, as generally described on the attached Exhibit C-2." 3. All instances of the term "Interim Drainage Improvements" appearing in Section 4 will be replaced with the term"Combined Drainage Improvements". 4. Section 9.D will be amended to read in its entirety as follows: "City's obligations under this Section 9 will commence on the Permanent Acceptance Date and will end on the earlier of: (1) the fifteenth (15th) anniversary of the Permanent Acceptance Date, and (2)the Full Satisfaction Date." 5. All references in this Agreement to "Credit Portion" and "Reimbursement Portion" will be read and understood to mean those Portions as calculated upon the revised meaning of "Fee Study Value" as set forth in subparagraph 1 of this paragraph C. 8 V237-014--998585.1 2012-260 • 11. Notices. A. As used in this Agreement, the term "Notice" means any request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other required or permitted communication. B. All Notices must be in writing and will be considered given: 1. When delivered in person to the recipient named below. 2. On the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope, postage prepaid, as either registered or certified mail, return receipt requested. 3. On the date of delivery shown in the records of a reputable delivery service (e.g. UPS or Federal Express). C. All Notices must be addressed and delivered as follows: If to City: If to Vulcan: City of San Bernardino Vulcan Materials Company, West Region Attn: City Manager Attn: Legal Department 300 North"D" Street, 6th Floor 500 N. Brand Boulevard, Suite 500 San Bernardino, CA 92418 Glendale, CA 91203 with a copy to: with a copy to: City of San Bernardino Gresham Savage Nolan& Tilden, APC Attn: City Attorney 550 E. Hospitality Lane, Suite 300 300 North"D" Street, 6th Floor San Bernardino, CA 92408-4205 San Bernardino, CA 92418 Attn: Mark A. Ostoich Kevin K. Randolph D. Either Party may, by Notice given at any time, require subsequent Notices to be given to another Person or to a different address, or both. Notices given before receipt of Notice of change of address will not be invalidated by the change. 12. Entire Agreement. This Agreement is fully integrated and contains the entire understanding and agreement of the Parties. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to in this Agreement. Parol evidence will not be admissible to interpret this Agreement. 13. Estoppel Certificates. Within ten (10) business days following a Party's written request, and at no cost to the requesting Party, the other Party will certify in a written estoppel certificate that, to its actual current knowledge: 9 V237-014--998585.1 2012-260 A. This Agreement is in full force and effect and is binding upon the certifying Party, except as otherwise expressly described in the estoppel certificate. B. This Agreement has not been amended or modified, except as otherwise expressly described in the estoppel certificate. C. The requesting Party is not in default of its obligations under this Agreement, and that there have been no events that with the passage of time,the giving of notice, or both, would constitute the requesting Party's default under this Agreement, except as otherwise expressly described in the estoppel certificate. D. The amounts described in the requesting Party's request as the remaining, then-current balances of the Credit Portion and Reimbursement Portion are correct, except as otherwise expressly described in the estoppel certificate. 14. Severability. Every provision of this Agreement is a separate and independent covenant. If any provision is, or the application of the provision in certain circumstances is, to any extent, found to be invalid or unenforceable for any reason whatsoever, then the remainder of this Agreement, or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected. The Parties will negotiate in good faith any amendments or operating memoranda necessary to cure any invalidity or unenforceability. 15. Interpretation and Governing Law. This Agreement and any dispute concerning it will be governed and interpreted in accordance with California's procedural and substantive laws, without regard to its conflicts of laws principles. This Agreement will be construed as a whole according to its fair language and common meaning. The rule of construction that ambiguities in a document are to be resolved against the drafting party may not be employed in interpreting this Agreement. Each Party acknowledges that it was represented by counsel in this Agreement's negotiation and preparation. 16. Rules of Construction. A. All section headings and subheadings are inserted for convenience only and do not affect this Agreement's construction or interpretation. B. The singular of any word includes the plural. C. All references to "years", "quarters", "months" and "days" are references to calendar years, quarters, months and days. D. Time is of the essence as to the performance of any obligation as to which time is an element. E. All gender-specific terms used in this Agreement will be understood to include the other gender, e.g. his includes hers, she includes he. F. The term "including"means "including, without implied limitation." 10 V237-014--998585.1 2012-260 17. Waiver and Amendment. A. A Party's failure on any one or more occasions to insist upon strict compliance by the other Party, or a Party's failure on any one or more occasions to exercise its rights upon the other Party's default, is not a waiver of that Party's right to demand strict compliance by the other Party on any future occasion. B. This Agreement may be amended only by a written instrument signed by both Parties' authorized representatives. 18. No Third Party Beneficiaries. This Agreement is entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person or entity has any right of action based upon this Agreement. 19. Municipal Code. All Municipal Code references are references to the Municipal Code as it exists on the Effective Date. 20. Jurisdiction and Venue. Except as otherwise required or permitted by law, all legal actions and proceedings to enforce or interpret this Agreement must be filed and tried in San Bernardino Superior Court. 21. Project as a Private Undertaking. The development of the Vulcan Property is a private development and neither Party is acting as the agent of the other in any respect. Each Party is an independent contracting entity with respect to this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Vulcan is that of a government entity regulating the development of private property by a private party. 22. Further Actions and Instruments. Each Party must cooperate with the other and provide reasonable assistance to the other in the performance of the other Party's obligations. Upon a Party's request, the other Party must promptly execute (with notary acknowledgment if required) those instruments, and take any reasonable actions, necessary to evidence or consummate the transactions expressly described, or which are a logical extension of the transactions expressly described, in this Agreement. 23. Attorneys' Fees. If either Party files any action or brings any proceeding against the other pertaining to the interpretation or enforcement of this Agreement, then the prevailing Party will recover as an element of its costs of suit and not as damages its costs of suit, expert fees, consultant costs, and reasonable attorneys' fees as fixed by the court, including fees and costs incurred on appeal. The costs, salaries, and expenses of the City Attorney and members of his office in connection with that action or proceeding shall be considered as attorneys' fees for the purposes of this Agreement. 24. Authority to Execute. Each natural person executing this Agreement on behalf of a Party represents that he or she has the authority to execute this Agreement on behalf of that Party and that he or she has the authority to bind that Party to this Agreement. [Signatures follow on next page] 11 V237-014--998585.1 .j 2012-260 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first written above. "Vulcan" CALMAT CO., a Delaware corporation, doing business as Vulcan Materials Company, West Region 7 ritfti By: , ichael Linto , •ice President Date: /c;V./a /.2_, , 2012 "City" CITY OF SAN BERNARDINO, a California charter law city and municipal corporation By: ; AU lA lf��/� �l" ^ i 1 y �zl Andrea Travis-Miller, Acting City Manager Date: /2/6//Z— , 2012 Attest: L___ ,/y ,‘..,,/ , c -----:/:,4414(..),_ George anna, Cit ,'Clerk Approved as to form: James F. Penman, City Attorney By: L...._. _ / 12 V237-014--998585.1 2012-260 STATE OF CALIFORNIA ) COUNTY OF$4 di/l�/ 4 v ) On {MDR' C , 2012, before me, ///Oh/0 l, , Notary Public, personally appeared /Iali-r v Mee �1��/f/' " , proved to me on the basis of satisfactory evidence) to be the person(s)-whose name(eis/fie-subscribed to the within instrument and acknowledged to me that kt/she/they executed the same in Wher/their authorized capacity(iasl, and that by l s7her/thy signatures) on the instrument the person(s), or entity upon behalf of which the person(s-) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. VALERIE R.MONTOYA Commission#� 1985357 Notary Public California San Bernardino County Signature of Notary Public M Comm.Ex tres Au 2,2016 STATE OF CALIFORNIA ) ) COUNTY OF ) On , 2012, before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public 13 V237-014--998585.1 ACKNOWLEDGMENT State of California ) )ss County of Los Angeles ) On December 10, 2012 before me, Karen Shields Clark, Notary Public, personally appeared Michael Linton who proved to me on the basis of satisfactory evidence to be the person(s)whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures) on the instrument the person(s), or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. KAREN SHIELDS CLARK f 114,0_, Commission* 1954564 Signature ` fc.�.J� �-Q r, a, Notary Public-California Z . ` Los Angeles County My Comm.Expires Oct 28,2015 My Commission Number is 1954564. My Commission Expires October 28, 2015. 2012-260 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Bernardino Attn: City Manager 300 North"D" Street, 6th Floor San Bernardino, CA 92418 Exempt from Recording Fees pursuant to Gov't Code§27383 (Space above for Recorder's Use) CAJON CREEK STORM DRAINAGE IMPROVEMENTS— CREDIT AND REIMBURSEMENT AGREEMENT between CALMAT CO., a Delaware corporation, doing business as Vulcan Materials Company, West Region and CITY OF SAN BERNARDINO, a California charter law city and municipal corporation [Dated as of November 5 , 2012 for reference purposes only] -15 V237-014--998585.1 2012-260 CAJON CREEK STORM DRAINAGE IMPROVEMENTS — CREDIT AND REIMBURSEMENT AGREEMENT This Cajon Creek Storm Drainage Improvements — Credit and Reimbursement Agreement ("Agreement") is reference dated as of Novemb er 5„, 2012, between CALMAT CO., a Delaware corporation, doing business as Vulcan Materials Company, West Region ("Vulcan") and CITY OF SAN BERNARDINO ("City"), a California charter law city and municipal corporation. Vulcan and City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. Vulcan is the owner of approximately One Thousand One Hundred (1,100) acres of property ("Vulcan Property") located in the City of San Bernardino, California, and legally described in the attached legal description (Exhibit A-1), depicted by legal parcel in the attached depiction (Exhibit A-2) and depicted by planning area in the attached depiction (Exhibit B). The Vulcan Property is segregated into planning areas identified in Exhibit B. The Vulcan Property is undeveloped except for Planning Area L, which is used as a gravel mine. B. Vulcan intends to sell to a qualified purchaser ("Purchaser") approximately ninety (90) acres of the Vulcan Property ("Purchase Parcel"). The Purchase Parcel is identified as Planning Areas D, E and F on the Site Map. C. Vulcan expects that Purchaser will develop the Purchase Parcel for industrial purposes ("Project"). City will condition its regulatory approval of the Project on the construction of certain storm water drainage improvements ("Interim Drainage Improvements"). The Interim Drainage Improvements are generally described on the attached Exhibit C-1. D. The Interim Drainage Improvements will be of excess size and capacity and provide storm water drainage benefit to the Project, future development on the Vulcan Property and future development on other property in the surrounding area and any such property which has access to the Interim Drainage Improvements shall be deemed to be a benefitted property (collectively, the "Benefitted Property(ies)") for purposes of this Agreement. Without limiting the generality of the foregoing, the surrounding area (other than the Vulcan Property) which will be served and benefitted by the Interim Drainage Improvements (collectively, the "Surrounding Benefitted Property(ies)") are identified in attached Exhibits D-1, D-2 and D-3. Some of the Benefitted Properties are presently located outside the municipal limits of City, as shown in attached Exhibits D-1, D-2 and D-3 and such Benefitted Properties will not be subject to the provisions of this Agreement until such time as they are annexed into the municipal limits of City. E. The Interim Drainage Improvements are the primary component of a two- component system of storm water drainage improvements to provide storm water drainage benefit to the Vulcan Property and the Benefitted Properties. The second component, defined in this Agreement as the "Permanent Drainage Improvements", would connect to and extend the Interim Drainage Improvements to pre-existing storm water drainage channels and facilities. The 1 V237-014--998585.1 2012-260 combined Interim Drainage Improvements and the Permanent Drainage Improvements are collectively referred to in this Agreement as the "Combined Drainage Improvements." The Combined Drainage Improvements are generally described on the attached Exhibit C-2. F. The Permanent Drainage Improvements will also be of excess size and capacity and provide storm water drainage benefit to the Benefitted Properties, including the Surrounding Benefitted Properties. G. As more specifically described in this Agreement, Vulcan may elect to construct and dedicate the Permanent Drainage Improvements to City and/or another agency such as the County of San Bernardino ("County"), as applicable. If Vulcan does so, the amendments to this Agreement described in Section 10 will become automatically operative without the need of any further act or approval of either Party. H. City has previously prepared and adopted a Master Facility Plan ("Master Facility Plan"). The Master Facility Plan describes the public infrastructure and facilities required to provide necessary public services in City, including sewer, circulation and storm drainage services. The Combined Drainage Improvements are functionally equivalent to drainage improvements identified in the Storm Drainage Facilities section of the Master Facility Plan. I. City imposes development impact fees upon development projects within the municipal limits of City under the authority of the California Constitution, California Government Code Section 66000, et .m., and Municipal Code Chapter 3.27. Under Municipal Code section 3.27.105, City imposes and collects "Storm Drain Development Impact Fees" ("Storm Drain Impact Fees") to fund the construction of the storm drainage structures and improvements identified in City's Master Facility Plan, including facilities such as the Interim Drainage Improvements and the Permanent Drainage Improvements. J. City has previously prepared and adopted a "Development Impact Fee Calculation and Nexus Report for the Storm Drainage System for the City of San Bernardino, California (October 2006)" ("Development Impact Report"). Among other public facilities and improvements, the Development Impact Report identifies the public storm drainage facilities system described in City's Master Facility Plan and estimates their construction cost if constructed by City. The Development Impact Report identifies Project 7-E20, with an estimated cost of construction of $2,982,110, and Project 7-E21, with an estimated cost of construction of $4,505,040, for a total estimated cost of $7,487,150. The Combined Drainage Improvements are functionally equivalent to Project 7-E20 and Project 7-E21. K. Municipal Code section 3.27.140 provides that a developer who is required to pay a development impact fee in connection with the development of the developer's property is entitled to receive a credit against that fee if the developer constructs and dedicates to City or County, a facility (or portion thereof) identified in the Master Facility Plan. The amount of the credit will equal City's most recent estimated cost of constructing the dedicated facility (or portion), not to exceed the corresponding development impact fee which would be imposed in connection with the development of the developer's property. 2 V237-014--998585.1 2012-260 L. Municipal Code section 3.27.150 provides for reimbursement to a developer which constructs and dedicates public improvements which benefit property other than the developer's property. The reimbursement amount is equal to City's most recent estimated cost of constructing that portion of the public improvements which benefit the property other than developer's property, as established by the Development Impact Report. This reimbursement is in addition to the credits described in Municipal Code section 3.27.140. M. In accordance with Municipal Code section 3.27.140 and section 3.27.150, upon Vulcan's completion and acceptance of the Interim Drainage Improvements by City and/or County, Vulcan will be entitled to receive a combination of credits and reimbursement equal to Six Million Seven Hundred Thirty-Eight Thousand Four Hundred Thirty-Five Dollars ($6,738,435). If Vulcan elects to proceed with the construction of the Permanent Drainage Improvements, upon Vulcan's completion and acceptance of the Permanent Drainage Improvements by City or County, Vulcan will be entitled to an additional amount of credits and reimbursement equal to Seven Hundred Forty-Eight Thousand Seven Hundred Fifteen Dollars ($748,715), for a total amount of credit and reimbursements equal to Seven Million Four Hundred Eighty-Seven Thousand One Hundred Fifty Dollars ($7,487,150). The credits may be applied to fully offset any Storm Drain Impact Fees imposed by City against any future development project on the Vulcan Property, including the Project. In addition, Vulcan will receive reimbursements as more particularly set forth in this Agreement. OPERATIVE PROVISIONS 1. Recordation of Agreement. This Agreement may be recorded by Vulcan in San Bernardino County official records at any time after the Effective Date. 2. Effective Date., Vulcan Termination Right. A. This Agreement will become effective on the date ("Effective Date") on which it has been signed by both Parties and a fully executed counterpart original has been delivered to each Party. B. Nothing in this Agreement imposes an obligation on Vulcan to construct the Interim Drainage Improvements (or the Permanent Drainage Improvements referred to in Section 10). Vulcan may elect, in its sole and absolute discretion and at any time prior to commencement of construction of the Interim Drainage Improvements or the Permanent Drainage Improvements, to terminate this Agreement without cause and without cost, expense or liability to either Party by providing Notice to City. 3. Certain Defined Terms. A. In this Agreement, the following initially capitalized terms will have the following meanings in this Agreement: 1. "Benefitted Property(ies)" means any property which drains directly into or indirectly into the Interim Drainage Improvements or the Permanent Drainage Improvements, including the Project, future development on the Vulcan Property and future 3 V237-014--998585.1 2012-260 development on other property in the surrounding area, including the Surrounding Benefitted Properties. 2. "City" means the City of San Bernardino, California, a California charter law city and municipal corporation. 3. "County" means the County of San Bernardino, a political subdivision of the State of California. 4. "Credit Portion" means that portion of the Fee Study Value which will be credited against future Storm Drain Impact Fees payable in connection with development projects on the Vulcan Property, including the Project and the Purchase Parcel, in accord with Section 8. The Credit Portion will be reduced from time to time as Vulcan applies the Credit Portion to Storm Drain Impact Fees payable in connection with the development of the Project and the future development of the Vulcan Property. 5. "District" means the San Bernardino County Flood Control District. The District is not a party to this Agreement. 6. "Fee Study Value" means Six Million Seven Hundred Thirty- Eight Thousand Four Hundred Thirty-Five Dollars ($6,738,435), which is the amount established by the Development Impact Report as City's estimated cost to construct the Interim Drainage Improvements. This amount is subject to amendment as provided by Section 10. 7. "Full Satisfaction Date" means the date on which Vulcan has received, through (a) application of the Credit Portion as described in Section 8, (b) receipt of payments equaling the Reimbursement Portion as described in Section 9, or (c) a combination of both(a) and (b),the full Fee Study Value. 8. "General Requirements" means those rules, regulations, ordinances, specifications and requirements of City (including City standards) or the District which apply to the constructing and dedication of public improvements such as the Interim Drainage Improvements and, if applicable,the Permanent Drainage Improvements. 9. "Notice"has the meaning given to that term in Section 11. 10. "Plans and Specifications" means the drawings, blueprints, and technical specifications for construction of the Interim Drainage Improvements (and, if applicable, the Permanent Drainage Improvements). 11. "Prevailing Wage Laws" means Labor Code section 1720, et seA. and the implementing rules, regulations and orders of the State Director of Industrial Relations. 12. "Interim Acceptance Date" means the date on which City and/or County accepts the completed Interim Drainage Improvements into the storm water drainage facilities system of the accepting agency, as provided by Section 7. 4 V237-014--998585.1 2012-260 13. "Interim Drainage Improvements" means those storm water drainage improvements and facilities generally described on the attached Exhibit C-1. 14. "Reimbursement Portion" means that portion of the Fee Study Value which will be reimbursed to Vulcan in accord with Section 9. The Reimbursement Portion will be reduced from time to time as Vulcan receives reimbursement payments. 15. "Permanent Acceptance Date" means the date on which City and/or County accepts the completed Permanent Drainage Improvements into the storm water drainage facilities system of the accepting agency, as provided by Section 7 and Section 10. 16. "Surrounding Benefitted Property(ies)" means any property other than the Project or the Vulcan Property which drains directly or indirectly into the Interim Drainage Improvements or the Permanent Drainage Improvements including, without limitation, any or all of the parcels of real property identified in the attached Exhibits D-1, D-2 and D-3. 17. "Vulcan" means Calmat Co., a Delaware corporation, doing business as Vulcan Materials Company, West Region. B. In addition to the terms defined in paragraph A, other initially capitalized terms used in this Agreement will have the meaning given to those terms where they first appear in this Agreement. 4. Fee Study Value Not Dependent on Actual Construction Costs. The Fee Study Value is based upon City's estimated construction costs for the Interim Drainage Improvements, as established by the Development Impact Report. The Fee Study Value, and correspondingly, the Credit Portion and Reimbursement Portion, is not subject to increase or decrease based upon the actual construction cost of the Interim Drainage Improvements as incurred by Vulcan. 5. Credit and Reimbursement Not Contingent on Specific Development Project. As of the Effective Date, Vulcan expects that the Purchaser will acquire the Purchase Parcel and develop the Project. However, the Parties' rights and obligations under this Agreement are not dependent upon the closing of the sale to the Purchaser or on the development of the Project or on any other development of the Vulcan Property. Vulcan will be entitled to the credits and reimbursement set forth in this Agreement regardless of the timing or order of development of the Vulcan Property. 6. City Approval of Design and Construction Plan. Prior to commencing construction of the Interim Drainage Improvements, Vulcan will cause the preparation of the Plans and Specifications by an appropriately qualified civil engineer, licensed to practice in the State of California and other consultants selected by Vulcan, in its sole and absolute discretion, and submit them to City for review and approval. City will review the Plans and Specifications for conformance to General Requirements (which includes City standards). 7. Construction of Interim Drainage Improvements. A. Upon approval of the Plans and Specifications and provided that all necessary easements for access, construction and maintenance have been acquired, Vulcan may, 5 V237-014--998585.1 2012-260 in its sole and absolute discretion, provide Notice to City that Vulcan has elected to construct the Interim Drainage Improvements. In the event Vulcan so elects, Vulcan will cause construction of such Interim Drainage Improvements in accordance with City-approved Plans and Specifications, at the sole cost and expense of persons other than City. Vulcan will cause to be executed and delivered those reasonable, customary and routine land improvement agreements and bonds or other securities that City requires of developers of similar public infrastructure within the municipal limits of City. If this Agreement and the terms of those other agreements conflict or are inconsistent, then the terms and requirements of this Agreement will control to the extent of the conflict or inconsistency. B. Following completion of the Interim Drainage Improvements, and upon Vulcan's written request, City will inspect the Interim Drainage Improvements to determine whether they have been completed in compliance with the Plans and Specifications. Following City's approval of the completed Interim Drainage Improvements, Vulcan will offer to dedicate the Interim Drainage Improvements to City and/or County, in accordance with City's and/or County's reasonable routine and customary policies and procedures for the acceptance of public improvements. So long as the Interim Drainage Improvements have been constructed in accordance with the Plans and Specifications, City will accept the Interim Drainage Improvements into its storm water drainage facility system and undertake responsibility for the maintenance, repair and replacement of the Interim Drainage Improvements (including any associated access agreements) from and after the date of acceptance, subject to Vulcan's continuing obligations (if any) arising under the land improvement or similar agreements described in paragraph A. C. Vulcan shall comply with all Prevailing Wage Laws applicable to the design and construction of the Interim Drainage Improvements as determined by City. D. The Parties acknowledge that some or all of the Interim Drainage Improvements may be subject to County, rather than City, approval and acceptance. As to those Interim Drainage Improvements which are subject to County acceptance, the requirements of this Agreement as to acceptance of the Interim Drainage Improvements will be satisfied and Vulcan will be entitled to receive the credits and reimbursement from City as provided for in this Agreement, upon County's acceptance. 8. Application of Credit Portion to Future Storm Drain Impact Fees. A. As provided by Municipal Code section 3.27.140 and in addition to Vulcan's reimbursement rights under Section 9, Vulcan may, in its sole and absolute discretion, apply the Credit Portion, in whole or in part, to offset, in whole or in part, the amount of any Storm Drain Impact Fees imposed against the future development of the Vulcan Property, including the Purchase Parcel and the Project. Vulcan may, in its sole and absolute discretion, assign all or any portion of the Credit Portion to the Purchaser of the Purchase Parcel or to any other purchaser of all or any portion of the Vulcan Property. City may not permit any person or entity other than Vulcan to apply all or any portion of the Credit Portion unless City has received Notice from Vulcan consenting to such application and identifying the amount of the Credit Portion assigned by Vulcan. 6 V237-014--998585.1 2012-260 B. City's obligations under this Section 8 are obligations which run with the land of the Vulcan Property and which inure to the benefit of subsequent purchasers of the Vulcan Property. C. City's obligations under this Section 8 will commence on the Interim Acceptance Date and will end on the Full Satisfaction Date. 9. Reimbursement from Developers of Benefitted Properties. A. As provided by Municipal Code section 3.27.150 and in addition to Vulcan's credit rights under Section 8, Vulcan will be paid the Reimbursement Portion as described in paragraph B. B. In order to fund the Reimbursement Portion, City will require each applicant for a permit to develop a development project on any Benefitted Property including, without limitation, any Surrounding Benefitted Property, which is at that time located within the municipal limits of City (including any portion of the Vulcan Property that is sold and developed), to either (1) produce evidence that Vulcan has assigned to such purchaser the Credit Portion related to such Benefitted Property or (2) to pay to City the Storm Drain Impact Fee which is imposed against that development project by then-current City ordinance or resolution. City will not approve any application or grant any permit for a development project on a Benefitted Property which is at that time located within the municipal limits of City (including any portion of the Vulcan Property that is sold and developed), unless (a) the applicant or permittee produces evidence that Vulcan has assigned to such person the Credit Portion related to such Benefitted Property; (b) City has received the payment of the Storm Drain Impact Fee required by this paragraph B; or (c) City is compelled by law to provide access to the Interim or Permanent Drainage Improvements and is prohibited by law from assessing the Storm Drain Impact Fee from this applicant or permittee or the subject development project. Without limiting the generality of the foregoing, City will not otherwise allow any owner of a Benefitted Property to have access to the Interim Drainage Improvements or the Permanent Drainage Improvements, unless (i) such owner produces evidence that Vulcan has assigned to such purchaser the Credit Portion related to such Benefitted Property; (ii) City has received payment of the Storm Drain Impact Fee required by this paragraph B; or (iii) City is compelled by law to provide access to the Interim or Permanent Drainage Improvements and is prohibited by law from denying such owner access to the Interim Drainage Improvements or the Permanent Drainage Improvements. The Parties acknowledge and agree that City's obligations as set forth herein apply only to Benefitted Property including, without limitation, any Surrounding Benefitted Property, that is located within the municipal limits of City. Within thirty (30) days following receipt of any Storm Drain Impact Fee required by this paragraph B, City shall pay an equal amount to Vulcan. C. The Reimbursement Portion will be payable to Vulcan regardless of whether it continues to own all or any portion of the Vulcan Property. Vulcan may, in its sole and absolute discretion, assign all or any portion of its right to receive the Reimbursement Portion and will provide Notice of any assignment to City. 7 V237-0I4--998585.1 2012-260 D. City's obligations under this Section 9 will commence on the Interim Acceptance Date and will end on the earlier of: (1) the fifteenth (15th) anniversary of the Interim Acceptance Date, and (2)the Full Satisfaction Date. 10. Construction of Permanent Drainage Improvements. A. Upon approval of the Plans and Specifications and provided that all necessary easements for access, construction and maintenance have been acquired, Vulcan may, in its sole and absolute discretion and at any time, provide Notice to City that Vulcan has elected to construct, or cause to be constructed, the Permanent Drainage Improvements. Nothing in this Agreement imposes an obligation on Vulcan to construct the Permanent Drainage Improvements. B. If Vulcan elects to construct and dedicate the Permanent Drainage Improvements, Vulcan will proceed to do so in accord with the requirements and procedures applicable to the design, construction and dedication of the Interim Drainage Improvements, as described Section 6 and Section 7. For purposes of the design, construction and dedication of the Permanent Drainage Improvements, all references in Section 6 and Section 7 to the Interim Drainage Improvements will be read and understood to mean the Permanent Drainage Improvements. C. Immediately upon the Permanent Acceptance Date, the following amendments to this Agreement will become applicable and effective, without need of either Party's approval or other act: 1. Section 3.A.6 will be amended to read as follows: "Fee Study Value" means Seven Million Four Hundred Eighty-Seven Thousand One Hundred Fifty Dollars ($7,487,150), which is the amount established by the Development Impact Report as City's estimated cost to construct the Combined Drainage Improvements." 2. A new defined term will be added to Section 3.A. to read as follows: "Combined Drainage Improvements" means the Interim Drainage Improvements and the Permanent Drainage Improvements, collectively, as generally described on the attached Exhibit C-2." 3. All instances of the term "Interim Drainage Improvements" appearing in Section 4 will be replaced with the term"Combined Drainage Improvements". 4. Section 9.D will be amended to read in its entirety as follows: "City's obligations under this Section 9 will commence on the Permanent Acceptance Date and will end on the earlier of: (1) the fifteenth (15th) anniversary of the Permanent Acceptance Date, and (2)the Full Satisfaction Date." 5. All references in this Agreement to "Credit Portion" and "Reimbursement Portion" will be read and understood to mean those Portions as calculated upon the revised meaning of "Fee Study Value" as set forth in subparagraph 1 of this paragraph C. 8 V237-014--998585.1 2012-260 11. Notices. A. As used in this Agreement, the term "Notice" means any request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other required or permitted communication. B. All Notices must be in writing and will be considered given: 1. When delivered in person to the recipient named below. 2. On the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope, postage prepaid, as either registered or certified mail, return receipt requested. 3. On the date of delivery shown in the records of a reputable delivery service (e.g. UPS or Federal Express). C. All Notices must be addressed and delivered as follows: If to City: If to Vulcan: City of San Bernardino Vulcan Materials Company, West Region Attn: City Manager Attn: Legal Department 300 North"D" Street, 6th Floor 500 N. Brand Boulevard, Suite 500 San Bernardino, CA 92418 Glendale, CA 91203 with a copy to: with a copy to: City of San Bernardino Gresham Savage Nolan & Tilden, APC Attn: City Attorney 550 E. Hospitality Lane, Suite 300 300 North"D" Street, 6th Floor San Bernardino, CA 92408-4205 San Bernardino, CA 92418 Attn: Mark A. Ostoich Kevin K. Randolph D. Either Party may, by Notice given at any time, require subsequent Notices to be given to another Person or to a different address, or both. Notices given before receipt of Notice of change of address will not be invalidated by the change. 12. Entire Agreement. This Agreement is fully integrated and contains the entire understanding and agreement of the Parties. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to in this Agreement. Parol evidence will not be admissible to interpret this Agreement. 13. Estoppel Certificates. Within ten (10) business days following a Party's written request, and at no cost to the requesting Party, the other Party will certify in a written estoppel certificate that, to its actual current knowledge: 9 V237-014--998585.1 2012-260 A. This Agreement is in full force and effect and is binding upon the certifying Party, except as otherwise expressly described in the estoppel certificate. B. This Agreement has not been amended or modified, except as otherwise expressly described in the estoppel certificate. C. The requesting Party is not in default of its obligations under this Agreement, and that there have been no events that with the passage of time, the giving of notice, or both, would constitute the requesting Party's default under this Agreement, except as otherwise expressly described in the estoppel certificate. D. The amounts described in the requesting Party's request as the remaining, then-current balances of the Credit Portion and Reimbursement Portion are correct, except as otherwise expressly described in the estoppel certificate. 14. Severability. Every provision of this Agreement is a separate and independent covenant. If any provision is, or the application of the provision in certain circumstances is, to any extent, found to be invalid or unenforceable for any reason whatsoever, then the remainder of this Agreement, or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected. The Parties will negotiate in good faith any amendments or operating memoranda necessary to cure any invalidity or unenforceability. 15. Interpretation and Governing Law. This Agreement and any dispute concerning it will be governed and interpreted in accordance with California's procedural and substantive laws, without regard to its conflicts of laws principles. This Agreement will be construed as a whole according to its fair language and common meaning. The rule of construction that ambiguities in a document are to be resolved against the drafting party may not be employed in interpreting this Agreement. Each Party acknowledges that it was represented by counsel in this Agreement's negotiation and preparation. 16. Rules of Construction. A. All section headings and subheadings are inserted for convenience only and do not affect this Agreement's construction or interpretation. B. The singular of any word includes the plural. C. All references to "years", "quarters", "months" and "days" are references to calendar years, quarters, months and days. D. Time is of the essence as to the performance of any obligation as to which time is an element. E. All gender-specific terms used in this Agreement will be understood to include the other gender, e.g. his includes hers, she includes he. F. The term "including"means "including, without implied limitation." 10 V237-014--998585.1 2012-260 17. Waiver and Amendment. A. A Party's failure on any one or more occasions to insist upon strict compliance by the other Party, or a Party's failure on any one or more occasions to exercise its rights upon the other Party's default, is not a waiver of that Party's right to demand strict compliance by the other Party on any future occasion. B. This Agreement may be amended only by a written instrument signed by both Parties' authorized representatives. 18. No Third Party Beneficiaries. This Agreement is entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person or entity has any right of action based upon this Agreement. 19. Municipal Code. All Municipal Code references are references to the Municipal Code as it exists on the Effective Date. 20. Jurisdiction and Venue. Except as otherwise required or permitted by law, all legal actions and proceedings to enforce or interpret this Agreement must be filed and tried in San Bernardino Superior Court. 21. Project as a Private Undertaking. The development of the Vulcan Property is a private development and neither Party is acting as the agent of the other in any respect. Each Party is an independent contracting entity with respect to this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Vulcan is that of a government entity regulating the development of private property by a private party. 22. Further Actions and Instruments. Each Party must cooperate with the other and provide reasonable assistance to the other in the performance of the other Party's obligations. Upon a Party's request, the other Party must promptly execute (with notary acknowledgment if required) those instruments, and take any reasonable actions, necessary to evidence or consummate the transactions expressly described, or which are a logical extension of the transactions expressly described, in this Agreement. 23. Attorneys' Fees. If either Party files any action or brings any proceeding against the other pertaining to the interpretation or enforcement of this Agreement, then the prevailing Party will recover as an element of its costs of suit and not as damages its costs of suit, expert fees, consultant costs, and reasonable attorneys' fees as fixed by the court, including fees and costs incurred on appeal. The costs, salaries, and expenses of the City Attorney and members of his office in connection with that action or proceeding shall be considered as attorneys' fees for the purposes of this Agreement. 24. Authority to Execute. Each natural person executing this Agreement on behalf of a Party represents that he or she has the authority to execute this Agreement on behalf of that Party and that he or she has the authority to bind that Party to this Agreement. [Signatures follow on next page] 11 V237-014--998585.1 2012-260 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first written above. "Vulcan" CALMAT CO., a Delaware corporation, doing business as Vulcan Materials Company, West Region By: Michael Linton, Vice President Date: , 2012 "City" CITY OF SAN BERNARDINO, a California charter law city and municipal corporation By: Andrea Travis-Miller, Acting City Manager Date: , 2012 Attest: Georgeann Hanna, City Clerk Approved as to form: James F. Penman, City Attorney By: ' ..A.4.■ _ 12 V237-014--998585.1 2012-260 STATE OF CALIFORNIA ) ) COUNTY OF ) On , 2012, before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) COUNTY OF ) On , 2012, before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public 13 V237-014--998585.1