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W-H GT Owner IX, L.P. 2023-09PROJECT REIMBURSEMENT AGREEMENT This PROJECT REIMBURSEMENT AGREEMENT ("Agreement") is executed this o2^a day of March, 2023 ("Effective Date"), by and between the CITY OF GRAND TERRACE, a California municipal corporation ("City'), and , W-H GT Owner IX, L P ("Developer") City and Developer may be referred to, individually or collectively, as "Party" or "Parties " RECITALS WHEREAS, Developer has submitted to City an application to develop a Light Manufacturing Assembly building on property with Assessor Parcel Nos 1167-121-02, 1167-121- 03, 1167-121-04, and 1167-121-07 in the City of Grand Terrace, California ("Project"), WHEREAS, pursuant to California Environmental Quality Act ("CEQA"), the Project must be reviewed by City for potential additional environmental impacts Environmental analysis is required under CEQA for land use entitlements An Initial Study and necessary environmental documents, such as an Environmental Impact Report, will be prepared for the Project City will retain the services of outside consultants due to the nature and scope of the Project WHEREAS, City has agreed to hire one or more consultants ("Consultants," and individually a "Consultant") to assist in processing applications and plans submitted by Developer for the Project, which will include an analysis and approval required under CEQA laws and regulations City will also utilize its own staff to oversee and coordinate the processing of such applications and plans, and will use the City Attorney's office for review and negotiation of documents or agreements related to the Project WHEREAS, as of the date of execution of this Agreement, the City has already incurred certain costs and attorney's fees in connection with the Project, and such costs and fees are intended to be included as reimbursable costs pursuant to this Agreement WHEREAS, the City and Developer desire to enter into this Agreement to provide for Developer to be responsible for all direct and indirect City costs related to the Project, and for Developer to deposit funds with City in advance to reimburse City for such costs, and to establish procedures therefor NOW, THEREFORE, for the purposes set forth herein, and for good and valuable consideration, the adequacy of which is hereby acknowledged, the Parties hereby agree as follows TERMS 1 Incorporation of Recitals The Parties hereby incorporate the Recitals as though fully set forth herein 2 Developer Responsibility for City Costs Developer shall be responsible for, and shall reimburse City for, all direct and indirect costs, fees and expenses of City related to review and City's undertaking of the planning, design, and permitting for the Project, including 01247 0005/842889 6 processing and negotiating any permits, entitlements and proposed conditions of approval for the Project Developer's reimbursement shall be inclusive of any City efforts to facilitate the review and approval of the Project by other agencies, as may be needed, and the processing of the approvals which requires an analysis and approval under CEQA laws and regulations (the "City Costs") City Costs include, but are not limited to (a) City Attorneys' fees, at a rate not to exceed $400 00 per hour including but not limited to, for drafting, negotiating and reviewing this Agreement, contracts with Consultants, contracts with other agencies and public agencies, and any documents that the City deems necessary in connection with undertaking of the planning, design, penmtting, and for the processing of the Project approvals, (b) staff time required for drafting, negotiating and reviewing this Agreement, contracts with Consultants, and contracts with other agencies and public agencies, and any documents that the City deems necessary in connection with undertaking of the processing, planning, design, and permitting for the Project, and (c) all costs associated with Sections 2(a) and 2(b) above, including consultant costs and fees, (d) all costs related to studies, reports and design services for the development of any Project -related infrastructure, (e) all costs related to investigations of the Property or the Project, and (f) any other fees and costs deemed necessary by the City in order to process, review, or act upon or complete the Project Developer's obligation to deposit and reimburse City Costs are in addition to Developer's duty to indemnify, defend, and hold harmless City, as set forth in Section 8, below 21 Deposit In furtherance of the foregoing, Developer has or shall, within ten (10) days of the Effective Date, deposit with City an initial sum of One Hundred Thousand ($100,000 00) against which any City Costs will be drawn down ("Deposit") The Deposit represents City's best estimate of Developer's ultimate financial obligation to City under this Agreement At no point in time shall the minimum balance of the Deposit fall below $50,000, and Developer shall make such additional deposit(s) required under Section 2 2, below 22 Additional Deposits by Developer Developer shall make additional deposits to the City within ten (10) days of City's written request to the Developer up to an additional aggregate amount not exceeding $390,820 00 City's written requests for additional deposits shall state what costs have been incurred to date, additional costs anticipated, and how City intends to apply any needed additional Developer deposits If deposited sums exceed the costs incurred by City, City shall refund the difference as soon as City determines the amount of such excess 23 City's Right to Cease Work In the event that Developer does not promptly pay or reimburse the City Costs, including by failing to reimburse amounts incurred or timely pay any additional requested deposits, City may immediately cease all work related to or concerning the Project, and may take such further action as City deems appropriate, including deeming any Developer application(s) abandoned and any development permit issued by City to Developer null and void 24 Interest on Deposit Any amounts deposited by Developer shall be maintained by City in an interest-beanng account of City's choice, and may be co -mingled with other City funds in such account Interest accruing upon any such deposits shall inure to and be created for the benefit of City 2 25 Accounting City shall keep an accounting of the City Costs and all deposits made by Developer Upon written request, City shall provide statements of these accounts to Developer, which shall include descriptions of the City Costs, including the date, amount, and the type of activity for which the cost was incurred Failure of City to provide any accounting shall not excuse Developer's duty to perform any act, including the duty to make full and timely deposits required under this Section 2 Developer may question or challenge any use of funds set forth in the accounting and may appeal same to the City Council 26 Unexpended Funds Upon completion of City's assistance in connection with Developer's completion of the Project, the granting or issuance of all necessary Project approvals, the expiration of all applicable appeal periods, and if a legal or administrative challenge is made to the approvals, then upon the resolution of such challenge, City shall return any then - unexpended portion of the deposit to Developer, without interest, less an amount equal to any unpaid expenses previously incurred by the City 27 Developer's Right to Terminate Agreement In the event Developer determines, in its sole discretion, that it no longer desires to pursue the development of the Project, Developer shall deliver written notice to the City of its election to terminate this Agreement Such written notice of termination shall be delivered to City at least 30 days prior to the effective date of termination Upon receipt of any notice of termination, City shall immediately cease all work under this Agreement except as otherwise agreed upon between the Parties The City shall refund Developer any funds previously deposited with the City that are in excess of the costs incurred by the City under this Agreement (such costs incurred by City under this Agreement shall include, without limitation, work carried out by City pursuant to this Section 2 7) within 30 days of receipt of such notice of termination 3 Additional Taxes, Fee, and Charges Notwithstanding any provision to the contrary, Developer shall pay all normal and customary fees and charges applicable to all permits and approvals necessary for the Project, and any taxes, fees, and charges hereafter imposed by City, which are standard and umformly-applied to similar projects in the City 4 City Release, Expiration This Agreement shall expire three (3) years after the Effective Date unless Developer has outstanding reimbursement obligations to the City at such time or City reasonably determines that the Project has not been abandoned and/or City will incur additional reimbursable costs after such date, in which event this Agreement will be automatically extended for additional one (1) year terms until Developer has reimbursed all City Costs 5 Remedies In the event of a breach by Developer, City may, in addition to any other remedies, seek to recover the City Costs plus reasonable attorneys' fees in enforcing this Agreement This provision will not be interpreted to curtail any of City's remedies at law or equity against Developer for any violation of its codes, nor shall it be interpreted as a waiver of any defense of Developer 6 Conflicts of Interest 61 No Financial Relationship Developer acknowledges the requirements of Government Code Sections 1090 et seq (the "1090 Laws") and warrants that it has not entered 3 into any financial or transactional relationships or arrangements that would violate the 1090 Laws, nor shall Developer solicit, participate in, or facilitate a violation of the 1090 Laws 62 Developer's Representations and Warranties Developer represents and warrants that it is duly authorized to do business in the State of California Developer further represents and warrants that, for the 12-month period preceding the Effective Date of this Agreement, it has not entered into any arrangement to pay financial consideration to, and has not made any payment to, any City official, agent or employee that would create a legally cognizable conflict of interest as defined in the Political Reform Act (California Government Code sections 87100 et seq ) 7 Developer Acknowledgements Subject to the reimbursement obligations set forth in this Agreement, Developer acknowledges and agrees that, with respect to the work concerning the Project 71 City has sole discretion to select which of its employees and contractors are assigned to the work 72 City has sole discretion to direct the work and evaluate the performance of the employees and contractors assigned to the work, and City retains the right to terminate or replace at any time any such person 73 City has sole discretion to determine the amount of compensation paid to employees or contractors assigned to the work 74 City, not Developer, shall pay employees and contractors assigned to the work from a City account 8 Indemnification and Hold Harmless 81 Agreement Not Liability or Debt of City The Parties acknowledge that there may be challenges to the legality, validity and adequacy of this Agreement, the Project itself, or other City actions related to the same If such challenges are successful, such challenges could delay or prevent the performance of this Agreement, the approvals, or implementation of the Project City shall have no liability whatsoever for the inability of Developer to obtain approvals or implement the Project, as the result of any judicial determination that some or all of the Project, or any other City action related to any of the same are invalid or inadequate or not in compliance with law No official, officer, employee or agent of the City shall be personally liable hereunder to any extent The Parties further acknowledge and agree that this Agreement is not a debt of the City The City shall not in any event be liable hereunder other than to return the unexpended and uncommitted portions of the deposit as provided in Section 2 6 above, and to provide an accounting under Section 2 5 above The City shall not be obligated to advance any of its own funds for any reason whatsoever 82 Indemnification Developer agrees to indemnify, protect, defend, and hold harmless the City and its officials, officers, employees, agents, elected boards, commissions, departments, agencies, and instrumentalities thereof, from any and all actions, suits, claims, demands, writs of mandamus, liabilities, losses, damages, penalties, obligations, expenses, and any 4 other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to, arbitrations, mediations, and other such procedures) asserted by third parties against the City that challenge, or seek to void, set aside, or otherwise modify or annul, the action of, or any approval by, the City for or concerning this Agreement, the Project, or any other City action related to any of the foregoing (including, but not limited to, reasonable attorneys' fees and costs) (herein the "Claims and Liabilities") whether such Claims and Liabilities arse under planning and zoning laws, the Subdivision Map Act, CEQA, Code of Civil Procedure Sections 1085 or 1094 5, or any other federal, state, or local statute, law, ordinance, rule, regulation, or any decision of a competent jurisdiction In the event any action for any Claims and Liabilities is brought against the City and/or related parties, upon City's notification to Developer of the pendency of a claim or suit, Developer shall make a mimmum deposit sufficient to pay all of Developer's indemnification obligations for the following ninety (90) days, which includes legal costs and fees anticipated to be incurred as reasonably determined by the City Developer shall make deposits ("Indemnity Deposit") required under this section within five (5) days of the City's written request At no point during the pendency of such claim or suit shall the minimum balance of the Indemnity Deposit fall below One Hundred Thousand Dollars ($100,000) If Developer fails to timely pay such funds, the City may abandon the action without liability to Developer and may recover from Developer any attorneys' fees and other costs for which the City may be liable as a result of abandonment of the action It is expressly agreed that the City shall have the right to utilize the City Attorney's office or use other legal counsel of its choosing Developer's obligation to pay the defense costs of the City shall extend until final judgment, including any appeals City agrees to fully cooperate with Developer in the defense of any matter in which Developer is defending and/or holding the City harmless The City may make all reasonable decisions with respect to its representation in any legal proceeding, including its inherent right to abandon or to settle any litigation brought against it in its sole and absolute discretion, and City's reasonable decision to settle or abandon a matter, including but not lnmited to following an adverse judgment or failure to appeal, shall not cause a waiver of the City's indemnification rights Any decision by the City to settle litigation shall not, without the written consent of Developer, bind Developer City shall discuss litigation strategy with Developer in good faith, but shall retain absolute discretion to make strategy decisions 83 Exception The obligations of Developer under this Section shall not apply to any claims, actions, or proceedings ansing through the sole negligence or willful misconduct of the City, its members, officers, or employees 84 Period of Indemnification The obligations for indemnity under Section 8 2 shall begin upon the Effective Date and shall survive termination or expiration of this Agreement 9 Developer's Rights Concerning Review of Documents City shall give Developer at least ten (10) days' notice along with copies of any proposed contract with a Consultant and related documents so that Developer shall have the opportunity to provide comments or objections thereto, prior to the City finalizing, filing, or otherwise releasing any of the foregoing The City shall also provide Developer with draft copies of all other reports and studies funded through this Agreement Developer may discuss issues with the City or its consultants and may make comments orally or in writing The City shall also use reasonable efforts to permit Developer's review with respect to agendas and staff reports for all open City Council, Planning Commission and other public body meetings at which the Project or related matters are to be considered, and by providing Developer with draft copies thereof prior to or concurrently with the transmission of such documents to the appropriate body It is expressly understood that any and all City consultants retained hereunder are under contract solely with the City, and the City is free to disregard the comments of Developer and exercise its independent judgment in making payments to the Consultant or revising or accepting the Consultant's work product, without any liability whatsoever to Developer therefor 10 No Obligation to Approve Project The provisions of this Agreement shall in no way obligate the City to grant any approvals or take any particular action related to an application for any part of the Project, whether in whole or in part 11 Assignment Developer may not assign this Agreement to any other entity unless agreed to in writing by City and upon proof of the financial viability of the successor entity to fulfill the Agreement's obligations City's consent to assignment shall not be unreasonably withheld 12 Relationship Between the Parties The Parties agree that this Agreement does not operate to create the relationship of partnership, joint venture, or agency between City and Developer Nothing herein shall be deemed to make Developer an agent of City 13 Authority to Enter Agreement Developer warrants that it has the legal capacity to enter into the Agreement Each Party warrants that the individuals who have signed the Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party 14 Notices All notices, demands, invoices, and communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice To City City of Grand Terrace 22795 Barton Rd, Grand Terrace, CA 92313 Attn Konrad Bolowich, City Manager Copy to Aleshire & Wynder, LLP 18881 Von Karman Ave Suite 1700 Irvine, CA 92612 Attn Adrian Guerra, City Attorney Email aguerragawattorneys corn To Developer W-H GT Owner IX, L P 444 South Flower St, Suite 2100 Los Angeles, CA 90071 Attn Tom Lawless 2 Email tom lawless(bhines com Copy To c/o Hines Interests Limited Partnership 845 Texas Avenue, Suite 3300 Houston, Texas 77002 Attn Corporate Counsel Email corporate counsel@hines com Depending upon the method of transmittal, notice shall be deemed received as follows by facsmule, as of the date and time sent, by messenger, as of the date delivered, by U S Mail first class postage prepaid, as of 72 hours after deposit in the U S Mail, and by email, upon the sender's receipt of an email from the recipient acknowledging receipt 15 Cooperation, Further Acts The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement 16 Construction, References, Captions It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party Unless otherwise specified, any term referencing time, days, or period for performance shall be deemed calendar days and not business days, provided, however that any deadline that falls on a weekend or holiday shall be extended to the next City business day All references to Developer include all personnel, employees, agents, and contractors of Developer, except as otherwise specified in this Agreement All references to City include its elected officials, appointed boards and commissions, officers, employees, agents, and volunteers The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement 17 Amendment, Modification No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties 18 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel, or otherwise 19 Binding Effect Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns This section shall not be construed as an authorization for any Party to assign any right or obligation 20 No Third Party Beneficiaries There are no intended third party beneficiaries of any right or obligation assumed by the Parties 21 Invalidity, Severabihty If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions 7 shall continue in full force and effect, and shall be construed so as to effectuate the intent of the Parties 22 Consent to Jurisdiction and Venue This Agreement shall be construed in accordance with and governed by the laws of the State of California Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of San Bernardino, California Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure section 394 23 Time is of the Essence Time is of the essence with respect to this Agreement 24 Counterparts This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument 25 Entire Agreement This Agreement contains the entire agreement between City and Developer and supersedes any prior oral or written statements or agreements between City and Developer with respect to the subject matter of this Agreement [SIGNATURES OF PARTIES ON NEXT PAGE] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written CITY CITY OF GRAND TERRACE, a California municipal corporation Ko ad Bolowich, City Manager ATTEST By Debra Thomas, City Clerk APPROVED AS TO FO By / Adrian R Guerra, City Attorney .01 DEVELOPER W-H GT OWNER IX, L P By W-H GT IX, L L C , the general partner By W-H GT JV IX, L P , the sole member By Hines Barton Road Associates LP, its administrative partner By Hines Barton Road GP LLC, its general partner By Hines Interests Limited Partnership, its sole member By Name Paul Twardowski Title Senior Managing Director By Name Bre Norton Title Managing Director Two corporate officer signatures required when Developer is a corporation, with one signature required from each of the following groups 1) Chairman of the Board, President or any Vice President, and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document COUNTY OF SAN BERNARDINO M pd►� 'jp�vy� pp ��[ A,�' t On 3 / } 2023 before me 66lnwf �Ma� Thy ersona� 11 ' appeared �GU/� TWO-d f^" �", Proved to me on the basis of satisfactory evidence to be the person(s) whose names(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 the 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 m hand and official seal X N,.,.AMA'70A ThOM y _ Notary ?-1uc California'iamia Signature _-7 A „cam nf„ Comm »,or r 2286724 M.:-T— f_1J, t%A9r 2C23 OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER SIGNER IS REPRESENTING (NAME OF PERSON(S) OR ENTITY(IES)) NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01247 0005/842889 6 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the Identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California 1 County of!! iA^ UAC041JInQ J} On 1 3 before me, R MW414, —17k n14A ✓JT j� Date , 1 Here In Name and Title of the Officer personally appeared �u ::TAA)oJM Names) of Signer(s) who 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 the entity upon behalf of which the person(s) acted, executed the instrument o ASHLEYAMANDATHOMPSON Notary Public California Los Angeles County > J s Commission ; 2286724 My Corr^ Expi es Ap 27 2023 Place Notary Seal and/or Stamp Above 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 �X 4L-- Signature of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document Document Date Signer(s) Other Than Named Above Capacity(ies) Claimed by Signer(s) Signer's Name ❑ Corporate Officer — Title(s) ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other Signer is Representing 02018 National Notary Association Number of Pages Signer's Name ❑ Corporate Officer — Title(s) ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other Signer is Representing