HomeMy WebLinkAboutItem No. 12 - Reimbursement Agreement with Pulte Homes for Pavement Improvements12)Reimbursement Agreement with Pulte Homes for Pavement Improvements
Approve and authorize the City Manager to execute a reimbursement agreement with Pulte
Home, Inc. in the amount of $128,915.20 for pavement improvements in such final form as
approved by the City Attorney.
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REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Jason Simpson, City Manager
Prepared by:Remon Habib, City Engineer
Date:July 23, 2024
Subject:Reimbursement Agreement with Pulte Homes for Pavement Improvements
Recommendation
Approve and authorize the City Manager to execute a reimbursement agreement with Pulte
Home, Inc. in the amount of $128,915.20 for pavement improvements in such final form as
approved by the City Attorney.
Background
Pulte Homes is constructing 344 Single-family residential units in the Alberhill neighborhood of
the City as part of 28214 Tract (Alberhill Ranch). One of the conditions of approval for the project
is to widen Nichols Road between Lake Street and Terra Cotta Road and to grind and overlay the
existing cross-section adjacent to the widening.
Upon recent inspection of a portion of the road, 38,000 SF of pavement was identified as
alligatored and deteriorated to the point that an overlay would not be a suitable rehabilitation. This
section must be removed and replaced by an additional 4 inches of pavement. This work falls
outside of the conditions of approval.
Discussion
Pulte Homes reached out to the City, and City staff negotiated a tentative agreement whereby the
City would participate in the additional cost in order to proceed with the correct pavement
treatment. Removing and replacing the deteriorated pavement will ensure that the newly placed
pavement will reach its full life without needing early intervention by the City. The cost share to
the City is $128,915.20.
Agreement with Pulte Homes
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Staff reviewed the estimate against recently completed projects and concluded that it’s to the
City’s benefit to have Pulte Homes perform the work now and take advantage of the contractor
and crews that are already mobilized, as well as traffic control already set up in the area. Doing
this work as a separate project by the City would result in higher costs and significant delays.
Pulte and its subcontractors plan to perform the remaining paving work at Nichols by the end of
July.
Fiscal Impact
Fiscal Impact from the reimbursement agreement results into $128,915.20 which will be paid for
as part of funding allocated to Capital Pavement Rehabilitation Projects allocated by the City
under its CIP plan.
Attachments
Attachment 1 - Reimbursement Agreement
Exhibit A - Reimbursement Request from Pulte Homes
Engineering
Attachment 1 - Reimbursement Agreement.pdf 1
REIMBURSEMENT AGREEMENT
Vesting Tentative Tract Map 28214
Nichols Road Paving Improvements
THIS REIMBURSEMENT AGREEMENT (“Reimbursement Agreement”), entered into
this ____ day of July 2024 (the “Effective Date”), between the CITY OF LAKE ELSINORE, a
municipal corporation (“City”), and Pulte ___________, a ______________________
(“Developer”). City and Developer are sometimes hereinafter referred to individually as “party”
and collectively as “parties.”
RECITALS
The following Recitals are a substantive part of this Reimbursement Agreement. All
capitalized terms set forth in the Recitals shall have the meanings ascribed in the Development
Agreement as defined hereinbelow and as provided in Section 1 hereof unless otherwise provided
herein.
A.Vesting Tentative Tract Map 28214 was approved on January 13, 2004 and, by way
of subsequent legal actions, led to the phasing of development such that development related to
TTM 28214-9 is currently being developed by Developer.
B.TTM 28214-9 requires, as a condition of approval, the paving of certain off-site
Paving Improvements by Developer, notably paving conducted in connection with the widening
of portions of Alberhill Ranch Road, Nichols Road, and Lake Steet (the “Developer Paving
Improvements”).
C.While the Developer is responsible for certain widening and paving improvements
on a portion of Nichols Road as part of the Developer Paving Improvements, there are adjacent
existing portions of Nichols Road within the City’s municipal responsibilities that are in immediate
need of rehabilitation (the “City Paving Improvements”).
D.After discussions between representative of the City and Developer, the parties
have determined that the portion of Nichols Road lying within the City Paving Improvements can
be rehabilitated as a cost savings to the City if done concurrently with Developer’s work required
under the conditions of approval for the Developer Paving Improvements. The City Paving
Improvements and the Developer Paving Improvements are hereinafter referred to as the “Paving
Improvements.”
E.This Reimbursement Agreement is entered into (1) for the purpose of coordinating
Developer’s planning and paving of the Paving Improvements in accordance with approved plans,
and (2) to provide a mechanism to reimburse Developer for the hard costs incurred in the paving
of the City Paving Improvements (the “Reimbursements”), all as specifically set forth in the terms
and conditions described below.
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F.The total cost of the paving for the Paving Improvements addressed herein is
$257,830.39. Subject to the reimbursement provisions set forth in this Reimbursement
Agreement, the Developer will finance and complete the Paving Improvements described in
Attachment No. 1 attached hereto and incorporated herein by reference. City agrees to reimburse
Developer from available capital improvement funds for fifty percent (50%) of the Actual Cost
of the Paving Improvements completed by Developer, that is, $128,915.20.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
Section 1. Definitions
The following terms shall have the meanings ascribed to them in this Section 1 for
purposes of this Reimbursement Agreement. Unless otherwise indicated, any other terms,
capitalized or not, when used herein shall have the meanings ascribed to them in the Development
Agreement.
“Actual Cost” means the cost of the Paving Improvements incurred by Developer
based on the actual hard costs for the construction of such Paving Improvements, including labor,
materials and equipment as quoted by the contractor. Marathon General, Inc., based on the quote
attached hereto as Attachment No. 1. Actual Cost shall not include any internal or overhead costs
of Developer.
“Paving Improvements” are those off-site improvements described in Attachment
No. 1 to this Reimbursement Agreement.
“Plans” means the plans and specifications for the Paving Improvements approved
by the City Engineer pursuant to applicable City standards.
“Reimbursement Request” means a document, substantially in the form of
Attachment No. 2 hereto, to be used in requesting a payment of a reimbursement amount.
Section 2. Duty of Developer to Construct. The Developer shall construct or cause
to be constructed at its own cost, expense and liability the Paving Improvements in accordance
with the Plans. The Developer shall perform all of its obligations hereunder and shall conduct all
operations with respect to the construction of the Paving Improvements in a good, workmanlike
and commercially reasonable manner, with the standard of diligence and care normally employed
by duly qualified persons utilizing commercially reasonable efforts in the performance of
comparable work and in accordance with generally accepted practices appropriate to the activities
undertaken.
Section 3. Preparation and Approval of Plans and Specifications. The Developer
has or shall cause such plans and specifications as required by the City Engineer (the “Plans”) to
be prepared for the Paving Improvements and shall obtain the written approval of the Plans from
the City Engineer.
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Section 4. Licenses and Permits. Prior to commencement of construction, Developer
shall have secured (or shall have caused to be secured) any and all permits (“Permits”) which may
be required by the City or any other governmental agency affected by the construction of the
Paving Improvements. The Developer shall be responsible for paying all applicable fees and
charges to the City to obtain any permits which are necessary to construct the Paving
Improvements.
Section 5. Construction Requirements.
(a) The Developer shall require, and the specifications and contract documents
shall require all contractors, subcontractors, vendors, equipment operators and owner operators, in
each such case to the extent such individuals or entities are engaged to perform work on the Paving
Improvements, to pay at least general prevailing wage rates to all workers employed in the execution
of the contract, to post a copy of the general prevailing wage rates at the job-site in a conspicuous
place available to all employees and applicants for employment, and to otherwise comply with
applicable provisions of the California Labor Code, the California Government Code and the
California Public Contracts Code relating to general prevailing wage rates as required by the
specifications approved by the City Engineer.
(b) The Developer shall require each contractor, subcontractor, vendor, equipment
operator and owner operator, in each such case to the extent such individual or entity is engaged to
perform work on the Paving Improvements, to provide proof of insurance coverage satisfying the
requirements of Section 12 hereof throughout the term of the construction of the Paving
Improvements. Rather than requiring its contractors to provide such insurance, the Developer may
elect to provide the same for the benefit of its contractors.
(c) The Developer shall comply, and shall cause each contractor, subcontractor,
vendor, equipment operator and owner operator, in each such case to the extent such individual or
entity is engaged to perform work on the Paving Improvements, to comply with such other
requirements relating to the construction of the Paving Improvements as the City may impose by
written notification delivered to the Developer, to the extent legally required as a result of changes in
applicable federal, state or City laws, rules or procedures.
(d) The Developer shall require, and the specifications and bid and contract
documents shall require, all contractors, subcontractors, vendors, equipment operators and owner
operators, in each such case to the extent such individuals or entities are engaged to perform work on
the Paving Improvements, to submit certified weekly payroll records to the City Engineer promptly
upon request.
The Developer shall provide proof to the City Engineer, at such intervals and in such
form as the City Engineer may require, that the foregoing requirements have been satisfied as to the
Paving Improvements.
Section 6. Inspection; Completion of Construction. The City Engineer shall have
responsibility for providing inspection of the work of construction of the Paving Improvements to
insure that the work of construction is accomplished in accordance with the Plans approved by the
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City Engineer. City personnel shall have access to the site of the work construction at all reasonable
times for the purpose of accomplishing such inspection.
No later than ten business days after receiving notification from the City that the Paving
Improvements have been constructed in accordance with the Plans, the Developer shall forthwith file
with the Lake Elsinore City Clerk a Notice of Completion pursuant to the provisions of Section 3093
of the California Civil Code.
Section 7. Maintenance of Facilities; Warranties. The Developer shall maintain the
Paving Improvements in good and safe condition until they are approved and accepted by the City.
Prior to the City’s acceptance of the Paving Improvements, the Developer shall be responsible for
maintaining the Paving Improvements in proper operating condition, and shall perform such
maintenance as the City Engineer reasonably determines to be necessary. As of the date of the City’s
acceptance of the Paving Improvements, the Developer shall assign to the City all of the Developer’s
rights in any warranties, guarantees, maintenance obligations or other evidence of contingent
obligations of third persons with respect to the Paving Improvements.
Section 8. Ownership of Paving Improvements. Notwithstanding the fact that a portion
or all of the Paving Improvements may be constructed on property that has been or will be dedicated
to the City, the Paving Improvements shall be and remain the property of the Developer until
acceptable title thereto is conveyed to the City as provided herein. Such ownership by the Developer
shall likewise not be affected by any agreement that the Developer may have entered into or may
enter into with the City pursuant to the provisions of the Subdivision Map Act, Section 66410 et seq.
of the Code, and the provisions of this Section shall control.
Section 9. Acquisition of Paving Improvements. The Developer hereby agrees to
convey to the City and the City hereby agrees to accept the satisfactorily completed Paving
Improvements subject to the terms and conditions hereof. City may accept fully completed portions
as discrete components of the Paving Improvements prior to such time as all of the Paving
Improvements are complete, which shall not release or modify Developer’s obligation to compete the
remainder of the Paving Improvements. For purposes of this Agreement, “satisfactorily completed”
shall mean completed by Developer in accordance with all Plans, permits and all applicable federal,
state and local laws, regulations and standards. Notwithstanding the foregoing, City may not accept
any Paving Improvements unless and until Developer provides one set of “as built” or record drawings
or plans to the City for such Paving Improvements. The drawings shall be certificated and shall reflect
the condition of the Paving Improvements as constructed, with all changes incorporated therein.
Section 10. Reserved.
Section 11. Reimbursement Request; Reimbursement Notice and Payment of
Reimbursements.
(a) The Developer acknowledges that the Reimbursements paid for the Paving
Improvements accepted by the City pursuant to this Agreement shall not exceed the amount of
$128,915.20.
(b) Upon recordation of a Notice of Completion for Paving Improvements and
acceptance of the Paving Improvements by the City, the Developer shall submit to the City Engineer
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a Reimbursement Request in the form of Attachment No. 2 attached hereto and incorporated herein
by this reference, including copies of contracts, invoices, cancelled checks or other documentation
requested by the City Engineer evidencing costs actually incurred by Developer (“Reimbursement
Request”). The City Engineer shall use commercially reasonable efforts to determine the amount of
the Reimbursements within thirty (30) days of receipt of the Reimbursement Request submitted by
the Developer.
(c) The City Engineer will provide the Developer written notice (the
“Reimbursement Notice”), of the approved dollar amount of the Reimbursements.
(d) All Reimbursements administered by the City pursuant to this Agreement shall
be with the Developer only, unless modified by a separate agreement between the City and the
Developer or other successor in interest to Developer.
Section 12. Insurance Requirements. Without limiting or diminishing the Developer’s
obligation to indemnify or hold the City harmless, the Developer shall procure and maintain or cause
to be maintained, at its sole cost and expense, the following insurance coverage during the term of
this Agreement.
(i) Commercial General Liability: Developer shall maintain Commercial General
Liability insurance coverage, including but not limited to, premises liability,
contractual liability, products and completed operations, explosion, collages, use of
cranes, and other heavy equipment and underground hazards, personal and advertising
injury covering claims which may arise from or out of Developer’s performance of its
obligations hereunder (“Policy”). The Policy shall name by endorsement the City and
its special districts, respective directors, officers, Board of Supervisors, elected
officials, employees, agents or representatives as Additional Insureds. The Policy’s
limit of liability shall not be less than $2,000,000 per occurrence combined single
limit. If such insurance Policy contains a general aggregate limit, it shall apply
separately to this Agreement or be no less than two (2) times the occurrence limit.
(ii) Vehicle Liability: Developer shall maintain liability insurance for all owned,
non-owned or hired vehicles in an amount not less than $1,000,000 per occurrence
combined single limit. If such insurance contains a general aggregate limit, it shall
apply separately to this Agreement or be no less than two (2) times the occurrence
limit. Policy shall name by endorsement the City, its special districts, their respective
directors, officers, Board of Supervisors, elected officials, employees, agents or
representatives as Additional Insureds.
(iii) Worker’s Compensation Insurance: Developer shall maintain Workers’
Compensation Insurance (Coverage A) as prescribed by the laws of the State of
California.
Section 13. Representations, Warranties and Covenants of the Developer. The
Developer makes the following representations, warranties and covenants for the benefit of the City,
as of the date hereof and as of the date of the Reimbursement Request is delivered to the City
hereunder:
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(a) Organization. The Developer represents and warrants that the Developer is a
______________________ duly organized and validly existing under the laws of the State of
___________________, is in good standing under the laws of the State, and has the power and
authority to own its properties and assets and to carry on its business as now being conducted and as
now contemplated.
(b) Authority. The Developer represents and warrants that the Developer has the
power and authority to enter into this Agreement, and has taken all action necessary to cause this
Agreement to be executed and delivered, and this Agreement has been duly and validly executed and
delivered on behalf of the Developer.
(c) Binding Obligation. The Developer represents and warrants that this
Agreement is a valid and binding obligation of the Developer and is enforceable against the Developer
in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights in general and by general equity principles.
(d) Qualifications and Licenses. Developer represents that it or its contractors
shall possess the skills, qualifications and experience to perform the work assigned to them, and that
they shall have all licenses, permits, certifications and approvals of whatever nature that are legally
required to perform the work, and that such licenses, permits, certifications and approvals shall be
continuously maintained until all Paving Improvements have been accepted by the City.
Notwithstanding the foregoing, nothing set forth in this Agreement shall be construed to require the
Developer to perform any work requiring a contractor’s license, nor shall the Developer be deemed
to be performing construction services pursuant to this Agreement.
(e) Completion of Paving Improvements. The Developer covenants that it will
use its reasonable and diligent efforts to do all things that may be lawfully required of it in order to
cause the Paving Improvements to be completed in accordance with this Agreement.
(f) Compliance with Laws. The Developer covenants that at all times prior to the
City’s approval and acceptance of the Paving Improvements, including the period of construction,
ownership and maintenance by the Developer, Developer will not commit, suffer or permit any of its
agents, employees or contractors to commit any act to be done in, upon or to the Paving Improvements
in violation in any material respect of any law, ordinance, rule, regulation or order of any
governmental authority or any covenant, condition or restriction now or hereafter affecting the
Property or the Paving Improvements, including but not limited to the Americans With Disabilities
Act (ADA) of 1990, (42 U.S.C. 12101, et seq.), and regulations and guidelines issued pursuant to the
ADA, and Labor Code Sections 1700-1775, which require prevailing wages to be paid to any
employee performing work covered by Labor Code Section 1720 et seq. Developer hereby agrees
and acknowledges that it has not received, and is not relying on any statements or representations by
City or any of its officers, agents or employees in entering into this Agreement, specifically including
but not limited to any statements or representations regarding the applicability of Labor Code Section
1720, et seq. to the development or construction of the Project or specifically the Paving
Improvements, and Developer hereby expressly waives, releases and relinquishes any and all rights
and interests in and to any claim it has, or may have in the future, against the City in connection with
this Agreement, including specifically but not limited to any right or interest in any claim pertaining
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to the payment of, or obligation to pay, prevailing wages pursuant to of Labor Code Section 1720, et
seq.
(g) Reimbursement Requests. The Developer represents and warrants that it will
diligently follow all procedures set forth in this Agreement with respect to Reimbursement Requests
and that all documentation submitted shall be true and accurate.
(h) Financial Records. Until the City’s final acceptance of the Paving
Improvements, the Developer covenants to maintain proper books of record and account for the
Paving Improvements and all costs related thereto. The Developer covenants that such accounting
books will be maintained in accordance with generally accepted accounting principles, and will be
available for inspection by the City and the City Manager, at any reasonable time during regular
business hours on two business days’ prior written notice, subject to mutually acceptable
arrangements regarding the confidentiality of proprietary data.
Section 14. Representations, Warranties and Covenants of City. City makes the
following representations, warranties and covenants for the benefit of the Developer:
(a) Authority. City represents and warrants that City has the power and authority
to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed
and delivered, and this Agreement has been duly and validly executed and delivered on behalf of the
City.
(b) Binding Obligation. City represents and warrants that this Agreement is a valid
and binding obligation of City and is enforceable against City in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’
rights in general and by general equity principles.
(c) Completion of the Paving Improvements. The City covenants that it will use
its reasonable and diligent efforts to expeditiously take all actions that may be lawfully required of it
in issuing permits, processing and approving plans and specifications and inspecting the Paving
Improvements in accordance with this Agreement.
(d) Reimbursement Requests. City represents and warrants that it will diligently
follow all procedures set forth in this Agreement with respect to the evaluation of Reimbursement
Requests and payment of the Reimbursements.
Section 15. Indemnification. The Developer agrees to protect, indemnify, defend and
hold the City, and its respective officers, employees and agents, and each of them, harmless from and
against any and all claims, losses, expenses, suits, actions, decrees, judgments, awards, attorney’s
fees, and court costs (including any claims or liability asserted pursuant to Labor Code Section 1720,
et seq.) which the City, or its respective officers, employees and agents, or any combination thereof,
may suffer or which may be sought against or recovered or obtained from the City, or its respective
officers, employees or agents, or any combination thereof, as a result of or by reason of or arising out
of or in consequence of (a) the acquisition, construction, or installation of the Paving Improvements
occurring prior to the City’s acceptance of such Paving Improvements by the City; (b) the untruth or
inaccuracy of any representation or warranty made by the Developer in this Agreement or in any
certifications delivered by the Developer hereunder; or (c) any act or omission of the Developer or
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any of its subcontractors, or their respective officers, employees or agents, in connection with the
Paving Improvements. If the Developer fails to do so, the City shall have the right, but not the
obligation, to defend the same and charge all of the direct or incidental costs of such defense,
including any attorneys’ fees or court costs, to and recover the same from the Developer.
Section 16. Developer as a Private Developer. In performing under this Agreement, it is
mutually understood that the Developer is acting as a private developer, and not as an agent of the
City. The City shall have no responsibility for payment to any contractor, subcontractor or supplier
of the Developer. Accordingly, this Agreement does not constitute a debt or liability of the City.
Except as expressly provided in Section 11 regarding Reimbursements, the City shall not be obligated
to advance any of its own funds or any other costs incurred in connection with the Project. No
member, official or employee of the City shall be personally liable to the Developer, or any successor
in interest, in the event of any default or breach by the City or for any amount which may become
due to the Developer or its successors, or on any obligations under the terms of this Agreement.
Section 17. Other Agreements. Nothing contained herein shall be construed as affecting
the City’s or the Developer’s respective duty to perform its respective obligations under other
agreements, land use regulations or subdivision requirements relating to the development of the
Property, which obligations are and shall remain independent of the Developer’s rights and
obligations, and the City’s rights and obligations, under this Agreement; provided, however, that the
Developer shall use its reasonable and diligent efforts to perform each and every covenant to be
performed by it under any lien or encumbrance, instrument, declaration, covenant, condition,
restriction, license, order, or other agreement, the nonperformance of which could reasonably be
expected to materially and adversely affect the acquisition, construction and installation of the Paving
Improvements.
Section 18. Binding on Successors and Assigns. Neither this Agreement nor the duties
and obligations of the Developer hereunder may be assigned to any person or legal entity without the
written consent of the City, which consent shall not be unreasonably withheld or delayed. Neither
this Agreement nor the duties and obligations of the City hereunder may be assigned to any person or
legal entity, without the written consent of the Developer, which consent shall not be unreasonably
withheld or delayed. The agreements and covenants included herein shall be binding on and inure to
the benefit of any partners, permitted assigns, and successors-in-interest of the parties hereto.
Section 19. Amendments. This Agreement can only be amended by an instrument in
writing executed and delivered by the City and the Developer.
Section 20. Waivers. No waiver of, or consent with respect to, any provision of this
Agreement by a party hereto shall in any event be effective unless the same shall be in writing and
signed by such party, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given.
Section 21. No Third Party Beneficiaries. No person or entity, other than the City, shall
be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or
implied) is intended to confer upon any person or entity, other than the City and the Developer (and
their respective successors and assigns), any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
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Section 22. Notices. Any written notice, statement, demand, consent approval,
authorization, offer, designation, request or other communication to be given hereunder shall be given
to the party entitled thereto at its address set forth below, or at such other address as such party may
provide to the other party in writing from time to time, namely:
Developer: Pulte Group
Attn: Matthew D. Matson
27401 Los Altos, Ste. 400
Mission Viejo, CA 92691
City: City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92539
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, upon the sender’s receipt of an appropriate answerback or other written
acknowledgment, (c) if given by registered or certified mail, return receipt requested, deposited with
the United States mail postage prepaid, 72 hours after such notice is deposited with the United States
mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery to said
overnight courier, or (e) if given by any other means, upon delivery at the address specified in this
Section.
Section 23. Jurisdiction and Venue. City and the Developer (a) agree that any suit action
or other legal proceeding arising out of or relating to this Agreement shall be brought in state or local
court in the County of Riverside or in the Courts of the United States of America in the district in
which the City is located, (b) consent to the jurisdiction of each such court in any suit, action or
proceeding, and (c) waive any objection that it may have to the laying of venue or any suit, action or
proceeding in any of such courts and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum. Each of the City and the Developer agrees that a final and non-
appealable judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law.
Section 24. Attorneys’ Fees. If any action is instituted to interpret or enforce any of the
provisions of this Agreement, the prevailing party in such action shall be entitled to recover from the
other party thereto reasonable attorney’s fees and costs of such suit (including both prejudgment and
post judgment fees and costs) as determined by the court as part of the judgment.
Section 25. Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
Section 26. Incorporation of Recitals. The parties acknowledge the facts as set forth in
the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
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Section 27. Usage of Words. As used herein, the singular of any word includes the plural,
and terms in the masculine gender shall include the feminine.
Section 28. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
Section 29. Default Remedies. Failure by either Party to perform any action or covenant
required by this Reimbursement Agreement constitutes a “Default” under this Reimbursement
Agreement. A Party claiming a Default shall give written Notice of Default to the other Party
specifying such Default. Except as otherwise expressly provided in this Reimbursement Agreement,
the claimant shall not institute any proceeding against any other Party, and the other Party shall not
be in Default if such party within thirty (30) days from receipt of such Notice immediately, with due
diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure,
correction or remedy with diligence.
Section 30. Integration. This Reimbursement Agreement and the Development
Agreement contain the entire understanding between the parties relating to the transaction
contemplated by this Reimbursement Agreement. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Reimbursement
Agreement and shall be of no further force or effect. Each Party is entering this Reimbursement
Agreement based solely upon the representations set forth herein and upon each Party’s own
independent investigation of any and all facts such party deems material. This Agreement constitutes
the entire understanding and agreement of the Parties, notwithstanding any previous negotiations or
agreements between the parties or their predecessors in interest with respect to all or any part of the
subject matter of this Reimbursement Agreement.
Section 31. Severability. If any term, provision, condition or covenant of this
Reimbursement Agreement or its application to any party or circumstances shall be held, to any
extent, invalid or unenforceable, the remainder of this Reimbursement Agreement, or the application
of the term, provision, condition or covenant to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable
to the fullest extent permitted by law.
Section 32. Legal Advice. Each Party represents and warrants to the other the following:
they have carefully read this Reimbursement Agreement, and in signing this Reimbursement
Agreement, they do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matter set forth in this
Reimbursement Agreement, or have knowingly chosen not to consult legal counsel as to the matters
set forth in this Reimbursement Agreement; and, they have freely signed this Reimbursement
Agreement without any reliance upon any agreement, promise, statement or representation by or on
behalf of the other Party, or their respective agents, employees, or attorneys, except as specifically
set forth in this Reimbursement Agreement, and without duress or coercion, whether economic or
otherwise.
Section 33. Titles and Captions. Titles and captions are for convenience of reference only
and do not define, describe or limit the scope or the intent of this Reimbursement Agreement or of
any of its terms.
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Section 34. Enforced Delay; Extension of Times of Performance. Performance by
either party hereunder shall not be deemed to be in Default, and all performance and other dates
specified in this Agreement shall be extended, where delays or Defaults are due to: war; insurrection;
strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; unusually severe weather; inability to secure necessary labor, materials or
tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; acts or
failures to act of any other public or governmental agency or entity. Notwithstanding anything to the
contrary in this Agreement, an extension of time for any such cause shall be for the period of the
enforced delay and shall commence to run from the time of the commencement of the cause, if notice
by the party claiming such extension is sent to the other party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may also be extended in
writing by the mutual agreement of the City Manager the Developer.
Section 35. Authority. The Developer has the legal power, right and authority to execute,
deliver and enter into this Agreement and any and all other agreements and documents required to be
executed and delivered by the Developer in order to carry out, give effect to, and consummate the
transactions contemplated by this Agreement, and to perform and observe the terms and provisions
of all of the above. The persons who have executed this Agreement on behalf of Developer and all
other documents or instruments executed and delivered, or to be executed and delivered, pursuant to
this Agreement are authorized to execute and deliver the same on behalf of the Developer and all
actions required under the organizational documents and applicable governing law for the
authorization, execution, delivery and performance of this Agreement and all other documents or
instruments executed and delivered, or to be executed and delivered pursuant hereto by the persons
which have executed them, have been duly taken.
[Signatures on next page]
12
IN WITNESS WHEREOF, the parties have executed this REIMBURSEMENT
AGREEMENT as of the respective dates set forth below.
“CITY”
CITY OF LAKE ELSINORE, a municipal
corporation
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Assistant City Manager
“DEVELOPER”
PULTE ____________, a ___________
corporation
By: _______________
Its: _______________
ATTACHMENT NO. 1 – PAGE 1
ATTACHMENT NO. 1
PAVING IMPROVEMENTS
[TO BE ATTACHED]
ATTACHMENT NO. 2 – PAGE 1
ATTACHMENT NO. 2
FORM OF REIMBURSEMENT REQUEST
REIMBURSEMENT REQUEST NO. _____
The undersigned _____________ (the “Developer”) hereby requests payment in the total
amount of $__________ for certain Paving Improvements (as defined in the Paving Improvements
Reimbursement Agreement by and between the City of Lake Elsinore (the “City”) and Developer,
and described in Attachment No. 1 to that Agreement), all as more fully described in Exhibit “A”
hereto. In connection with this Reimbursement Request, the undersigned hereby represents and
warrants to the City as follows:
1. They are a duly authorized officer of the Developer, qualified to execute this
Reimbursement Request on behalf of the Developer and is knowledgeable as to the matters set
forth herein.
2. To the extent that this Reimbursement Request is with respect to completed Paving
Improvements, the Developer has submitted or submits herewith to the City, if applicable, as-built
drawings or similar plans and specifications for the items to be paid for as listed in Exhibit “A”
hereto with respect to any such Paving Improvements, and such drawings or plans and
specifications, as applicable, are true, correct and complete.
3. All costs of the Paving Improvements for which Reimbursement is requested
hereby are actual costs and have not been inflated in any respect. The items for which
Reimbursement is requested have not been the subject of any prior payment request submitted to
the City, including but not limited to, a request for reimbursement by a Community Facilities
District.
4. Supporting documentation (such as copies of contracts, third party invoices, lien
releases, cancelled checks and such other documentation requested by City Manager evidencing
costs actually incurred by Developer) is attached with respect to each cost for which
Reimbursement is requested.
5. The Paving Improvements for which Reimbursement is requested was constructed
in accordance with the requirements of the Agreement and in compliance with all applicable legal
requirements.
6. The Developer is in compliance with the terms and provisions of the Agreement
and no portion of the amount being requested to be reimbursed was previously paid.
7. The Reimbursement for the Paving Improvements (a detailed calculation of which
is shown in Exhibit “A” hereto for each Road Improvement) has been calculated in conformance
with the terms of the Agreement.
ATTACHMENT NO. 2 – PAGE 2
I hereby declare under penalty of perjury that the above representations and warranties are
true and correct.
DEVELOPER:
By:
Authorized Representative of Developer
Date:
CITY APPROVAL:
By:
City Manager
Amount Approved: $_____________
Date:
Reimbursement Request Approved for
Submission an Payment to City’s
Administrative Services Department
By:
City Manager
ATTACHMENT NO. 2 – PAGE 3
Remon Habib
From:
Sent:
Matt Matson <Matt.Matson@PulteGroup.com>
Wednesday, June 26, 2024 5:02 PM
To:Remon Habib; Yu Tagai; Scott Rippstein
Subject:
Attachments:
[External]Request to Review - Lake/Nichols Rd Traffic Control Plan 6.25.24
Proposal-Pulte_NicholsRdADDS6.18.24.pdf; Nichols Rd Cross Sections.pdf; Nichols and
Lake Intersection.pdf
Message from external sender. Use Caution.
Hello Remon,
Per our field discussion, please see the first attachment as MGI’s proposal $257,830.39 for your review in order to
for us to draft a (cost sharing) co-op agreement for the Nichols Road street improvement/repairs.
The second attachment is a step by step process from #1 (current condition) to #4 (final improvement) from
Alberhill Ranch Road on Nichols Road to Lake Street. It incorporates removing the damaged travel lane to base
grade, installing a 4” base pave, constructing a leveling course, and capping the entire street. This will fix the
damaged problem areas as well as bring the existing road up to 6” thickness.
The third attachment is our traic control plan for your review/approval.
Our current schedule to begin the Lake Street final street improvements, to include the Alberhill Ranch Road/Lake
Street intersection, is 7/16 – 7/18. If however, you are able to draft a co-op agreement and gain favor with Council
prior to this date to share the total cost 50/50 I can move this date to 7/29 – 8/2 and include both Lake Street and
Nichols Road together prior to school starting.
Thank you and I look forward hearing from you.
Matthew D. Matson
Pulte Group
27401 Los Altos, Ste. 400
Mission Viejo, CA 92691
562-441-2050
Matt.matson@pultegroup.com
From: Jeff Stowe <jstowe@maragen.com>
Sent: Tuesday, June 25, 2024 2:54 PM
To: Matt Matson <Matt.Matson@PulteGroup.com>
Subject: Lake/Nichols Rd Traffic Control Plan 6.25.24
External Sender
Hi Ma,
Please see aached TCP for the remaining offsite work at Alberhill.
1
Thanks
Jeff Stowe
Marathon General, Inc
License #551314
1728 Mission Ave
Escondido, CA 92029
Cell: (760) 685-7193
Office: (760) 738-9714
Fax: (760) 738-7091
CONFIDENTIALITY NOTICE: This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution
or disclosure by others is strictly prohibited. If you have received this communication in error, please notify the sender immediately by email and delete the
message and any file attachments from your computer. Thank you.
2
Marathon General, Inc.
Lic. No. 551314
Phone: (760) 685-7193
From: Jeff Stowe
1728 W. Mission Road, Escondido, CA 92029 DIR# 1000006005
FAX: (760) 738-7091
Quote Date:06/24/2024
To:Quote : 2411
Fax:PULTE HOMES
Phone: (760) 685-7193
Email:
We propose to furnish you labor and material in strict accordance with the plans and specifications as follows:
23-804 NICHOLS RD PAVING ADDS REVISED 6.18.24
Item No.Description Quantity U/M Unit Price Total Price
ALBERHILL RANCH TO TERRA COTTA
1 [NICHOLS ROAD]: ADDITIONAL AC PAVING BEYOND 706 TON $97.46 $68,806.76
2" DUE TO EXISTING FIELD CONDITIONS AT GRIND
AND OVERLAY.
2
3
MATERIAL PRICE INCREASE ASPHALT 706 TON
1 DAY
$7.43 $5,245.58
ADDITIONAL TRAFFIC CONTROL $2,350.00 $2,350.00
Total for: ALBERHILL RANCH TO TERRA COTTA $76,402.34
ALBERHILL RANCH ROAD TO LAKE STREET
3 REPAIR AC PAVING AT EXISTING DAMAGED LANE.
4" REMOVAL TO BASE GRADE, 4" REPLACEMENT
ADDITIONAL AC PAVING BEYOND CONTRACT 2"
38,000 SF $2.50 $95,000.00
$62,374.404
5
640 TON $97.46
$7.43MATERIAL PRICE INCREASE 1,555 TON $11,553.65
Total for: ALBERHILL RANCH ROAD TO LAKE STREET $168,928.05
NICHOLS RD AT TERRA COTTA INTERSECTION
9 [NICHOLS RD]: AC BERM 70 LF $50.00
$9.00
$3,500.00
$9,000.0010[NICHOLS RD]: ADDITIONAL 6" DEEP 1,000 SF
GRIND/OVERLAY AT CENTERLINE BEYOND TERRA
COTTA PER CITY REQUEST.
Total for: NICHOLS RD AT TERRA COTTA INTERSECTION $12,500.00
Total Proposal Price:$257,830.39
Date:Accepted by:
Page 1 of 1
Legend
Description
Quantity Unit
29,221.68 sf
53,284.19 sf
4" REMOVAL TO BASE GRADECONTRACT: [ARR to LAKE] NEW PAVING FULL SECTIONCONTRACT: [ARR to LAKE] OVERLAY +2" (REDUCE CROSS FALL TO 1%) 8,951.35 sf
8,951.35 sf10,392.98 sf 7,100.24 sf
11,728.47 sf 53,284.19 sf
REMON 10-26-2021
Legend
Description
Quantity Unit
8,956.75 sf
38,670.26 sf
4" REMOVAL TO BASE GRADECONTRACT: [ARR to LAKE] NEW PAVING FULL SECTIONCONTRACT: [ARR to LAKE] OVERLAY +2" (REDUCE CROSS FALL TO 1%) 9,062.79 sf
9,062.79 sf
8,956.75 sf
38,670.26 sf
REMON 10-26-2021