EXHIBIT 10.23
DEVELOPMENT MANAGEMENT AGREEMENT
THIS DEVELOPMENT MANAGEMENT AGREEMENT ("Agreement") is made and entered
into as of November 1, 1995, by and between the REDEVELOPMENT AGENCY OF THE CITY
OF RIVERSIDE ("Agency") and XXXXXX TECHNOLOGY COMPANY, a California Corporation
("Development Manager").
RECITALS
A. Agency, Development Manager and the County of Riverside ("County")
entered into that certain Exclusive Right to Negotiate and Reimbursement
Agreement dated January 11, 1994, as amended by that certain First Amendment to
Exclusive Right to Negotiate and Reimbursement Agreement dated February 14,
1995, that certain Second Amendment dated June 20, 1995 and that certain Third
Amendment dated August 15, 1995 (which Agreement and Amendments are hereinafter,
collectively the "ERN") with respect to the planning, development and leasing of
a United States Bankruptcy Court (Central District of California) (the
"Project") to the United States General Services Administration (the "GSA") as
part of the planned Justice Center of the Inland Empire.
B. The Redevelopment Plan for the Project Area was approved and adopted by
the Riverside City Council by Ordinance No. 3872 on November 16, 1971, and
amended by Ordinance No. 3980, Ordinance No. 4108, Ordinance No. 4246 and
Ordinance 5238.
C. The land on which the Project is to be developed is owned by the County
and has been, or shall be leased to Agency pursuant to the terms of that certain
Ground Lease (the "Ground Lease") which has been, or as a condition to the
effect of this Agreement shall be, entered into between the County and Agency.
D. In furtherance of the Project, Agency has entered into that certain
United States General Services Administration Lease GS-09B-93834, as amended
(the "GSA Lease").
E. Under the provisions of the ERN, Development Manager has caused the
premises which are to be the subject of the GSA Lease (the "Facility") to be
designed on a schematic basis as described in the GSA Lease and as further
developed and described in those drawings and specifications listed in Exhibit A
---------
(the "Design Documents") which have been prepared by Xxxxxxx Xxxxxx (the
"Architect").
F. In order to continue the efforts necessary to complete the preparation
of drawings, specifications, invitations to bidders and contracts for
construction of the Facility (collectively, "Construction Documents") and to
arrange for financing in order to meet the terms of the GSA Lease, Agency
desires that Development Manager continue its
1
efforts under the ERN, but under the terms of, as more fully set forth in, this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
---------
Article 1
DEVELOPMENT MANAGER'S SERVICES
------------------------------
1.1 GSA Lease. The parties acknowledge that under the terms of the ERN,
---------
Development Manager has prepared a comprehensive Project development proposal
for the GSA and assisted Agency in negotiating with the GSA leading to the award
and execution of the GSA Lease. Development Manager shall continue to assist
Agency in negotiations with the GSA regarding amendment of the GSA Lease as
necessary in order to secure financing for the Project, including the
preparation and negotiation on behalf of Agency of Supplemental Lease
Amendments.
1.2 Architecture and Engineering. The parties acknowledge that Development
----------------------------
Manager has retained Xxxxxxx Xxxxxx as the Architect with Agency's consent and
has proceeded to direct the preparation of the Design Documents by the Architect
and to coordinate the efforts of the Architect with the requirements of the GSA
and Agency and construction cost information provided by Development Manager's
construction manager. Xxxxxxxxx Construction Company (the "Construction
Manager"). Development Manager shall continue to provide such services with
respect to the preparation of the Construction Documents. Development Manager
shall schedule and coordinate periodic meetings as required to accomplish the
foregoing and shall expedite requests for information and responses thereto.
Development Manager shall coordinate the application for and issuance of all
requisite building permits.
1.3 Budgeting and Cost Estimating. Development Manager shall prepare and
-----------------------------
periodically update estimates of total development costs to complete
construction of the Project suitable for occupancy under the GSA Lease. The goal
of Development Manager shall be to coordinate the actions of the Architect, the
Construction Manager and Agency so that the total development costs will be paid
from the proceeds of financing obtained by Agency which is repaid by the
revenues from the GSA Lease.
1.4 Progress Schedule. Development Manager shall prepare and periodically
-----------------
(at least monthly) update a schedule reflecting the progress of construction and
showing the major tasks to be accomplished in order to complete construction of
the Project, financing and occupancy under the GSA Lease. The progress schedule
shall utilize information provided by Agency, the Construction Manager and the
2
Architect. The progress schedule shall be updated periodically to reflect the
actual progress of the Project.
1.5 Long-Lead Time Items. Under the terms of the ERN Development Manager
--------------------
has engaged Construction Manager to provide construction management services and
to place orders with the trade contractors listed below (selected as the lowest
cost responsible providers) for the design and fabrication of the long-lead time
items listed below in order that Project completion will occur within the time
required under the GSA Lease:
Xxxxx Manufacturing Structural Steel
Xxxxxxxxxx Elevators
SASCo Electrical
Graycon HVAC
Carco Plumbing
Xxxxxx Fire Protection
Development Manager has authorized Construction Manager to enter into agreements
("Trade Contracts") with such Trade Contractors either directly or in the name
of Development Manager. As a result of the change in the role of Development
Manager from that of turn-key design/builder as contemplated in the ERN,
Development Manager shall assign all such Trade Contracts to Agency, and Agency
shall accept such assignments, pursuant to separate Assignments of Long
Lead-Time Obligations for Construction Materials and Work pursuant to which
Development Manager shall be released by the applicable Trade Contractors.
1.6 Construction Phase Services. Construction phase services commence with
---------------------------
the award of the Trade Contracts and, together with Development Manager's
obligations to provide basic services under this Agreement, shall end 30 days
following substantial completion of the work under all of the Trade Contracts,
but not later than December 31, 1996. During the construction phase, Development
Manager shall provide the following services:
(a) All labor, materials, supplies and equipment necessary for
construction of the Facility shall be provided under agreements (the "Trade
Contracts") between Agency and the lowest responsive, responsible bidders (the
"Trade Contractors"). Development Manager shall coordinate with Construction
Manager to advertise for competitive bids for all construction work pursuant to
the Public Contract Code and all applicable Agency procedures. Development
Manager shall coordinate the efforts of the Architect and the Construction
Manager in the creation of bid documents and the forms of contracts to be used
with Trade Contractors, using forms provided by Agency or by Development Manager
and subject to Agency's approval.
(b) In accordance with a schedule established by Development
Manager, Agency shall open bids and with Development Manager's assistance, shall
review the apparent low bid for conformance
3
with the Construction Documents and legal requirements, including the forms of
payments and performance bonds and evidence of insurance provided by the
apparent low bidder. As soon as possible (with a goal of five to ten business
days) following Construction Manager's report to Agency of the apparent lowest
responsible, responsive bidder, Agency shall award and enter into the individual
Trade Contracts. At Development Manager's request, Agency shall consider
rejecting all bids for a portion of the construction work if the apparent low
bid is significantly in excess of the amount which Development Manager has
budgeted for such portion.
(c) Development Manager shall arrange for its Construction Manager to
provide administration of Trade Contracts as required to coordinate the work for
Trade Contractors with each other and with the activities of the Architect.
Development Manager shall establish and implement coordination and communication
procedures among Development Manager, Agency, the Architect and the Trade
Contractors.
(d) Development Manager shall coordinate, schedule and attend weekly
Project site meetings with Construction Manager, Trade Contractors, the
Architect and Agency and shall cause preparation and distribution of minutes of
such meetings.
(e) Development Manager shall establish and implement procedures for
reviewing and processing requests for clarifications and interpretations of the
Construction Documents, shop drawings, samples and other submittals,
construction schedule adjustment requests, change order proposals, proposals for
substitutions, payment applications and the maintenance of logs documenting
Project site activities, production of documents, distribution for review and
response and the status of such reviews. As Agency's representative at the
Project site, Development Manager shall be the party to which all such
information shall be submitted.
(f) Development Manager shall coordinate review by the Architect and
the Construction Manager of Trade Contractors' requests for information, shop
drawings, samples and other submittals to determine compliance with the
requirements of the Construction Documents. Notwithstanding the foregoing,
Development Manager shall not be responsible for any actions, errors or
omissions of the Architect, the Construction Manager or any failure of the labor
or materials provided by the Trade Contractors to comply with the requirements
of the Construction Documents, for other breaches of the Construction Documents
by the Trade Contractors, for other defective work of the Trade Contractors, or
for any loss, cost, damage or claims arising out of the actions or omissions of
the Trade Contractors, or any of them.
(g) Development Manager shall coordinate with the Construction Manager
to establish and implement a change order control system. All changes to a
Trade Contract shall only be by change orders executed by Agency. Development
Manager shall cause all changes
4
initiated by Agency first to be described in documents prepared by the Architect
and issued to the applicable Trade Contractor(s). Development Manager shall
review all Trade Contractors' proposals with applicable Trade Contractors, the
Architect, the Construction Manager and Agency and endeavor to determine and
evaluate for Agency the Trade Contractors' basis for the price and time
extensions requested to perform the work involved with a change. At Agency's
request, and in coordination with the Architect and the Construction Manager,
Development Manager shall coordinate issuance to the applicable Trade Contractor
of appropriate change order documents or change directives.
1.7 Construction Quality.
--------------------
(a) Development Manager shall monitor and coordinate the
activities of the Architect and the Construction Manager in determining in
general that the work of each Trade Contractor is being performed in accordance
with the requirements of the Construction Documents in order to determine in
general if the construction work is being performed in a manner indicating that,
upon completion, the Facility will be in accordance with the Construction
Documents.
(b) Development Manager shall not have control over or charge
of, and shall not be responsible for construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection
with the work of the Trade Contractors as such responsibilities shall be those
of the Trade Contractors. Development Manager shall not have control over or
charge of acts or omissions of the Architect, the Construction Manager, the
Trade Contractors or their agents or employees. No action taken by Development
Manager shall relieve a Trade Contractor from its obligations to perform its
work in strict conformance with the requirements of the Construction Documents
and all applicable laws, regulations, rules and interpretation of governmental
authorities.
1.8 Substantial and Final Completion. Development Manager shall
--------------------------------
coordinate the efforts of the Architect and the Construction Manager in
determining when the Facility and each Trade Contractor's work has reached
substantial completion and shall coordinate the preparation of a list of
incomplete work and work which does not conform to the requirements of the
Construction Documents. Following the Architect's issuance of a certificate of
substantial completion for the Project, Development Manager shall evaluate the
status of completion of the work of each Trade Contractor and make
recommendations to Agency concerning readiness for final inspections.
Development Manager shall assist Construction Manager in obtaining and
delivering to Agency or the GSA, if Agency so directs, required guarantees,
releases, bonds and waivers, together with all keys, manuals, record drawings
and maintenance stocks of materials.
5
1.9 Cost Management:
---------------
(a) Development Manager shall, with the participation of Construction
Manger and each Trade Contractor, determine a schedule of values for each Trade
Contract. The schedule of values shall be the basis for evaluating a Trade
Contractor's applications for payment against the progress of construction of
such Trade Contractor.
(b) Agency shall require that copies of all claims of Trade
Contractors for additional compensation or extensions of time for their
performance be given to Development Manager. Development Manger shall advise
Agency concerning Development Manager's opinion of the merit of Trade
Contractor's claims for additional time or compensation made during the
Construction Phase as well as the effect on the Project budget of all proposed
and approved change orders.
(c) In instances where a lump sum or unit price is not determined
prior to Agency's authorization to a Trade Contractor to perform change work,
Development Manager shall assist Construction Manager in reviewing records of
each Trade Contractor of the costs of materials and equipment and payrolls and
the amount of payments to each subcontractor, incurred by such Trade Contractor
in performing the work related to such change.
(d) Development Manager shall coordinate with the Architect and the
Construction Manager in reviewing progress payment applications submitted by
each Trade Contractor, review the progress of construction and making a good
faith determination whether the amount requested reflects the progress of the
Trade Contractor's work. Development Manager shall make appropriate adjustments
to each payment application and shall prepare and forward to Agency a progress
payment report which shall state the total of all Trade Contract sums, payments
to date, current payments requested, retainage and actual amounts owed for the
current period.
1.10 Project Closeout.
----------------
(a) Development Manager and the Construction Manager shall coordinate
and expedite submittal of information from the Trade Contractors to the
Architect for preparation of any required record drawings and specifications.
(b) Prior to final completion of the Project, Development Manager and
the Construction Manager shall arrange for the assembly of all manufacturers'
operations and maintenance manuals, warranties and certificates, and shall
deliver such documents to Agency.
(c) Development Manager shall arrange to coordinate with the
Construction Manager and with the GSA's maintenance personnel to observe the
Trade Contractors' startup, testing and operation of Project systems as required
under the Construction Documents.
6
(d) Development Manager shall coordinate with the Construction Manager
to arrange for training of Agency's operating engineers in the proper operation
and maintenance of Project systems. Training sessions shall be scheduled
following consultation with Agency, but it shall be Agency's responsibility to
select personnel to be trained and to assure such personnel attend scheduled
training.
(e) Development Manager shall coordinate the activities of the
Architect and the Construction Manager in creating a substantial completion
punch list and shall advise Agency concerning the completion of punch list
items.
1.11 Additional Services. Any services which may be required to be
-------------------
provided by Development Manager in addition to the basic services described
above, including, for example, assisting Agency in the prosecution of claims
against insurers, Trade Contractors or others, or assisting Agency in the
defense of any such claims, shall be considered additional services and shall
only be provided by Development Manager upon mutual agreement with Agency.
Article 2
AGENCY'S RESPONSIBILITIES
-------------------------
2.1 Delivery of Information and Approvals.
-------------------------------------
(a) To the extent not otherwise set forth in the GSA Lease, Agency
shall provide Development Manager with full information regarding the
requirements of the Project, including any Redevelopment Project area
requirements.
(b) Agency shall arrange for and obtain all land use entitlements and
similar permits and shall obtain all easements and other property rights which
may be required for development of the Project.
(c) Agency shall respond to all requests for information or approval
by Development Manager within three business days of Development Manager's
request. Such time period shall also apply to all requests for approval which do
not require action by Agency's Board. Agency shall otherwise arrange to provide
property rights, land use entitlements, approvals of other governmental entities
and funds as necessary for completion of the Project, all in accordance with the
Project schedule prepared by Development Manager, unless disapproved by Agency
within five business days following delivery to Agency.
2.2 Agency's Representative. Agency has designated its Executive Director
-----------------------
as its representative with authority to bind Agency in all matters except those
would entail an amendment of this Agreement.
7
2.3 Form of Trade Contracts. Agency shall use its best efforts to enter
-----------------------
into any Trade Contracts with respect to the Project on forms previously
approved by Development Manager with respect to insurance and indemnification
provisions.
Article 3
COMPENSATION OF DEVELOPMENT MANAGER
-----------------------------------
3.1 Compensation for Basic Services
-------------------------------
(a) As compensation for its services under this Agreement, Agency
shall pay to Development Manager a fee of $716,978.46, less certain amounts paid
under the ERN through October 31, 1995, payable in equal monthly installments of
$14,428.10 until paid in full.
(b) If completion of the Project, as evidenced by the issuance of a
certificate of completion by the Architect, occurs on or before four hundred and
thirty (430) days following Agency Board award of the first publicly bided Trade
Contracts for this Agreement, as such date may be extended by delays not under
Development Manager's control, then Development Manager shall be paid an early
completion bonus of $3,333 per day, but not to exceed $100,000, for each day
that such completion so precedes the end of such construction period, as such
date may be so extended. At Development Manager's request Agency shall pay for
acceleration of Project construction to the extent Agency reasonably determines
that amounts so expended for acceleration are likely to result in commensurate
savings in the costs of the Project to Agency or a commensurate increase in the
revenues to Agency generated by the Project.
3.2 Reimbursements Payable to Development Manager.
---------------------------------------------
(a) On a monthly basis Agency shall reimburse Development Manager or,
at Development Manager's request or Agency's option, pay directly to third
parties on behalf of Development Manager, costs and expenses incurred by
Development Manager in connection with the project for the services and items
listed in Exhibit B. The total amount payable by Agency for such services and
---------
items shall not exceed the total amount shown in Exhibit B without Agency's
---------
prior consent, except to the extent any increase in the cost to Development
Manager of any such services or items which does not result from any cause under
Development Manager's reasonable control. Causes not under the Development
Manager's reasonable control shall include, without limitation, the actions or
omissions of Architect and/or Construction Manager.
(b) Agency shall reimburse Development Manager for the costs of the
reimbursable items listed below as incurred by Development Manager in connection
with its services in assisting the Agency to obtain the award of the GSA Lease.
Such reimbursement, less a 20% retention, shall be paid to Development Manager
30 days after Agency
8
receives the proceeds from revenue bonds sold intended to be repaid from the GSA
Lease rents and such payment shall be conditioned upon Agency's receipt and
verification of contracts or other evidence of obligation and evidence of
payment by Development Manager. The amount of the reimbursement to Development
Manager previously retained shall be paid to Development Manager within 45 days
following substantial completion of the Project.
Reimbursable Item Amount
----------------- ------
architects/engineers $ 23,521.92
master planning 10,000.00
entitlements 14,595.00
financing plan 7,382.76
legal 4,505.00
deposit to Agency 5,000.00
project management 88,550.00
-----------
Total $153,554.68
===========
(c) Agency shall use its best efforts to maximize the amount of
proceeds available from the sale of bonds secured by the Project.
(d) Reimbursements otherwise due to Development Manager but not
including amounts due from Development Manager to Architect or Construction
Manager, may be withheld by Agency to the extent necessary for Agency to recover
damages finally adjudicated to be due to Agency as a result of a material
default by Development Manager under this Agreement. Any of such reimbursements
which are determined wrongfully to have been withheld shall bear interest at the
highest rate permitted by law, but not to exceed 12% per annum, from the date
due until paid in full.
3.3 Progress Payments. All amounts payable hereunder on a monthly basis
-----------------
shall be payable on the first day of each month, commencing November 1, 1995,
provided that Development Manager shall have delivered its application for
payment of such amounts to Agency on or before five business days preceding such
date.
3.4 Compensation for Additional Services. Development Manager shall be
------------------------------------
entitled to an increase in its fee as compensation for additional services
requested by Agency or required if Development Manager has not been able to
complete its services under this Agreement by December 31, 1996 due to delays
resulting from events not under Development Manager's reasonable control on the
basis of reimbursing Development Manager for additional costs incurred in
connection with such additional services. Included in the costs of additional
services for which Development Manager shall be entitled to reimbursement shall
be the following:
9
.1 costs of reimbursable items as listed in Exhibit B;
---------
.2 the product of (a) 2.4 multiplied by (b) costs of labor, including
insurance and benefits, whether field or home office, and including
direct employees and consultants;
.3 costs of materials, supplies and equipment, including transportation,
rental costs of machinery and equipment; and
.4 premiums for bonds and insurance, permits, fees, sales, use or similar
taxes, related to the additional services.
3.5 Development Manager's Accounting.
--------------------------------
(a) Records of costs payable on a reimbursable basis and costs for
additional services payable on a reimbursable basis shall be kept on the basis
of generally accepted accounting principles and shall be available to Agency or
Agency's authorized representative at mutually convenient times.
(b) Development Manager shall keep such full and detailed accounts
and records of contracts, work or purchase orders, fees and expenses payable
directly by Agency to Trade Contractors or to Development Manager on a
reimbursable basis as may be necessary for proper financial management under
this Agreement, and the system shall be satisfactory to Agency. Agency shall be
afforded access to and the right to copy and audit all Development Manager's
records, books, correspondence, data relating to such fees and expenses and
Development Manager shall preserve all such records for a period of three (3)
years or for such longer period as may be required by law after final payment
hereunder.
Article 4
STANDARD TERMS
--------------
4.1 Damages.
-------
(a) If Development Manager or Agency defaults with regard to any of
the provisions of this Agreement, the non-defaulting party shall serve written
notice of such default upon the defaulting party. As of the date of this
Agreement, neither party is in default under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary,
Development Manager shall not be liable to Agency, and Agency hereby waives all
claims, suits and demands against and releases Development Manager from damages,
losses, expenses and claims for injury, death and property damage arising out of
or in connection with the acts or omissions of the Architect, the Construction
Manager and the Trade Contractors, and its and their employees, consultants and
subcontractors. The foregoing waiver and release is given in recognition that
Agency will be in direct contract with Trade
10
Contractors, and that the Architect and the Construction Manager are aware that
Agency is the intended third-party beneficiary of their services. Nothing in the
foregoing shall be deemed to release Development Manager from claims, suits or
demands by Agency arising out of Development Manager's negligence or misconduct.
4.2 Indemnity.
---------
(a) Development Manager is skilled in the professional calling
necessary to perform the services and duties agreed to be performed under this
Agreement, and Agency, not being skilled in such matters, relies upon the skill
and knowledge of Development Manager to perform said services and duties in the
most professional manner. Therefore, Development Manager agrees to indemnify,
hold harmless and defend Agency, City Council and each member thereof, and every
officer and employee of Agency, from any and all liability or financial loss
resulting from any suits, claims, losses or actions brought by any entity,
person or persons and from all costs and expenses of litigation brought against
Agency, Agency Board, and each member hereof, or any officer, employee, or agent
of Agency, by reason of injury to any person or persons, including, but not
limited to officers and employees of Agency and City, or damage, destruction, or
loss of tangible property of any kind whatsoever, including, but not limited to,
that of Development Manager, resulting directly or indirectly from any or all
wrongful or negligent activities and operations of Development Manager or any of
its employees in the performance of this Agreement.
(b) Agency agrees to indemnify, hold harmless and defend Development
Manager and every officer and employee of Development Manager, from any and all
liability or financial loss resulting from any suits, claims, losses, or actions
brought by any entity, person or persons and from all costs and expenses of
litigation brought against Development Manager and each or any officer,
employee, or agent of Development Manager, or damage, destruction, or loss of
property of any kind whatsoever, including but not limited to that of
Development Manager, resulting directly or indirectly from any or all wrongful
or negligent activities and operations of Agency or any person or entity
employed by Agency in the performance of this Agreement or in the provision of
labor, materials, supplies and equipment for construction of Facility.
4.3 Insurance.
---------
(a) Prior to the commencement of construction on the Property,
Development Manager shall furnish or cause to be furnished to Agency duplicate
originals or appropriate certificates of (1) bodily injury and property damage
insurance policies with limits of $1,000,000 per occurrence, $2,000,000 in the
aggregate, business auto liability insurance with limits of $1,000,000 each
occurrence and excess or umbrella liability insurance with limits of
$10,000,000; together with workers' compensation and employers' liability
insurance as required by
11
law and otherwise with a $1,000,000 policy limit and errors and omissions
insurance with a limit of $1,000,000, naming the County, Agency and the City as
additional insureds. Development Manager shall also furnish or caused to be
furnished to Agency evidence satisfactory to Agency that any contractor with
whom it has contracted for the performance of work on the Project carries
workers' compensation insurance as required by law. The obligations set forth
in this Section shall remain in effect until a Certificate of Completion has
been issued by Agency, and said policies shall provide that they shall not be
canceled or reduced in coverage or amounts without giving Agency at least thirty
(30) days prior written notice. The policy amounts set forth above shall not
limit or define the extent of Development Manager's indemnity liability pursuant
to (i) this Section 4.3, (ii) any other provision of this Agreement, or
(iii) arising as a matter of law or at equity.
(b) Development Manager shall furnish Agency with certificates of
insurance evidencing all such coverages and certificates evidencing renewal
thereof before expiration of the coverage of the policy in question. Such
certificate shall be provided on a form approved by Agency. Agency may also
request Development Manager to provide it with copies of the actual policies for
its review. In the event Development Manager fails to provide any certificate
when due evidencing coverage required to be maintained by Development Manager,
Agency may, but shall not be required to, obtain such coverage and deduct any
costs in connection therewith from any sums due Development Manager from Agency
or seek reimbursement for same from Development Manager, which sum shall be due
and payable immediately on receipt by Development Manager of notice from Agency.
In the event Agency has to initiate legal action for recovery of same,
Development Manager shall pay all costs and reasonable attorneys' fees in
connection therewith provided however, such judgment is in favor of Agency.
(c) The following statement shall appear in each certificate of
insurance provided Agency by Development Manager hereunder: "It is agreed that
in the event of any material change in or cancellation of this policy, thirty
(30) days prior written notice will be given to:
Redevelopment Agency of the
City of Riverside
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Executive Director
Re: U.S. Bankruptcy Court"
(d) Development Manager and Agency shall give prompt written notice
to the other party of all losses, damages, or injuries to any person or to
property of Agency, Development Manager or of third persons of which that party
becomes aware and which may be in any way related to the Project or for which a
claim might be made against either
12
party. Development Manager and Agency shall promptly report to the other party
all such claims of which either party has noticed, whether related to matters
insured or uninsured. No settlement or payment for any claim for loss, injury
or damage or other matter as to which any party may be charged shall be made
without the prior written approval of such party.
(e) The insurance provided by Development Manager shall be primary to
any coverage available to Agency, except for claims which involve Contractors
that are directly contracted with Agency. In those instances, the Contractor's
insurance shall be primary. The insurance policies shall name Agency as an
additional insured and shall include provisions for waiver of subrogation.
4.4 No Discrimination.
-----------------
(a) Development Manager for itself and its successors and assigns
agrees that in the performance of its services related to the Project;
Development Manager will not discriminate against any employee or applicant for
employment because of sex, marital status, race, color, religion, creed,
national origin, or ancestry, and that Development Manager will comply with all
applicable local, state and federal fair employment laws and regulations.
(b) All contracts relative to the improvements constructed as part of
the Project shall contain or be subject to substantially the following
nondiscrimination or non-segregation clauses, pursuant to Section 33436 of the
California Health and Safety Code:
In deeds: "The grantee herein covenants by and for himself, his
--------
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee himself or any person claiming under or through him, establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land in perpetuity."
In leases: "The lessee herein covenants by and for himself, his
---------
heirs, executors, administrators and assigns, and all persons claiming under or
through him, and this lease is made and accepted upon the subject to the
following conditions: That there shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin or ancestry, in the leasing,
subleasing,
13
transferring, use, occupancy, tenure or enjoyment of the land herein leased,
nor shall the lessee himself, or any person claiming under or through him,
establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees of the land herein
leased."
In contracts: "There shall be no discrimination against or segregation of,
------------
any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land, nor shall the
transferee himself or any person claiming under or through him establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the land."
4.5 Notices and Demands. All notices or other communications required or
-------------------
permitted hereunder shall be in writing, and may be personally delivered or sent
by United States registered or certified mail, postage prepaid, return receipt
requested, addressed to parties at the addresses provided below, subject to the
right of either party to designate a different address for itself by notice
similarly given. Any notice so given by registered or certified United States
mail shall be deemed to have been given on the second business day after the
same is deposited in the United States mail. Any notice not so given by
registered or certified mail shall be deemed given upon receipt of the same by
the party to whom the notice is given.
To Agency: Redevelopment Agency of the
City of Riverside
0000 Xxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
Attention: Executive Director
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: City Attorney
City of Riverside
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
To Development Manager: Xxxxxx Technology Company
0000 X. Xxxxxxxx Xxxxxxx
Xx Xxxxxxx, XX 00000
Attention: C. Xxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
14
With a copy to: Xxxxxx Technology Company
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. X'Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
4.6 Non-liability of Agency or City Officials and Employees. No member,
-------------------------------------------------------
official or employee of the City of Riverside or Agency shall be personally
liable to Development Manager, or any successor in interest in the event of any
default or breach by Agency or for any amount which may become due to
Development Manager or to its successor, or on any obligations arising under
this Agreement.
4.7 Extension of Times of Performance and Delays. In addition to specific
--------------------------------------------
provisions of this Agreement, neither party hereunder shall be deemed to be in
default where delays or defaults are due to war; insurrection; strikes;
lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public enemy; epidemics; quarantine restrictions; and freight embargoes.
4.8 Project Suspension or Abandonment. Agency shall not terminate this
---------------------------------
Agreement except for cause as provided in this Agreement or except in connection
with Agency's good faith determination permanently to abandon the Project. If
the Project is suspended or abandoned in whole or in part through no fault of
Development Manager, Development Manager shall be compensated for all services
performed up through receipt of written notice from Agency of such suspension or
abandonment, together with reimbursable costs accrued through such date,
termination, cancellation and demobilization costs, together with (i) a
termination fee in the amount of the lessor of the amount of Development
Manager's fee remaining unpaid through the end of the period for basic services
or three monthly installments of Development Manager's fee, and (ii) payment in
full of any portion of the $153,554.68 reimbursement then unpaid under paragraph
3.2(b). If the Project is resumed within two years following suspension or
termination after being suspended for more than three months, Development
Manager's compensation shall be adjusted by agreement of the parties but shall
in no event be less than the amount of Development Manager's total fee than
remaining unpaid, and in any event upon the resumption of the Project within
such two year period, Agency shall use the services of Development Manager as
contemplated in this Agreement. Notwithstanding the foregoing, if the Project is
permanently abandoned by Agency due to its inability following its best efforts
to sell bonds or otherwise raise money in order to provide the funds to cover
Project costs, or if the Project is abandoned permanently due to the
cancellation of the GSA Lease by the GSA prior to Project completion, then no
termination fee shall be payable, and in the event of termination due to an
inability to sell bonds, no payments for reimbursable expenditures incurred by
Development Manager following Agency's notice to Development Manager that it is
abandoning the Project shall be payable.
15
4.9 Legal Action.
------------
(a) If either party brings any action or proceeding against the other
arising out of this Agreement, then as between Development Manager and Agency,
the prevailing party shall be entitled to recover as an element of its costs of
suit, and not as damages, its reasonable attorney's fees as fixed by the court
in such action or proceeding or in a separate action or proceeding brought to
recover such attorney's fees.
(b) In addition to any other rights or remedies, either party may
institute legal action to cure, correct, or remedy any default, to recover
damages for any default, or to obtain any other remedy consistent with the
purpose of this Agreement. Such legal actions must be instituted and maintained
in the Superior Court of the County of Riverside, State of California, in any
other appropriate court in that County, or in the Federal District Court in the
Central District of California.
(c) The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
(d) Except with respect to rights and remedies expressly declared to
be exclusive in this Agreement, the rights and remedies of the parties are
cumulative and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times
of any other rights or remedies for the same default or any other default by the
other party.
4.10 Real Estate Commissions. Agency shall not be liable for any real
-----------------------
estate commission, brokerage fees or finders fees which may arise from this
Agreement. Agency and Development Manager each represent and warrant to the
other that it has engaged no broker, agent, or finder in connection with this
transaction.
4.11 Time Deadlines Critical. Time is of the essence of this Agreement.
-----------------------
4.12 Submission of Documents and Other Actions for Approval.
------------------------------------------------------
(a) Except where such approval is expressly reserved to the sole
discretion of the approving party, all approvals required hereunder by either
party shall be not be unreasonably withheld.
(b) Any requests for approval of documents submitted to Agency shall
contain the following heading in bold type on the first page of the request:
16
ATTENTION EXECUTIVE DIRECTOR
THIS IS A REQUEST FOR AGENCY OR CITY APPROVAL OF THE ATTACHED DOCUMENT. PLEASE
REVIEW THE MATERIAL AND APPROVE OR DISAPPROVE IT IN WRITING WITHIN THE TIME
ESTABLISHED FOR SUCH ACTION THEREFOR IN THE DEVELOPMENT MANAGEMENT AGREEMENT OR
SCHEDULE OF PERFORMANCE.
4.13 Amendments to This Agreement. Development Manager and Agency agree to
----------------------------
mutually consider reasonable requests for amendments to this Agreement which may
be made by any of the parties hereto, lending institutions, bond counsel or
financial consultants. Any amendments to the Agreement must be in writing and
signed by the appropriate authorities of both Agency and Development Manager.
4.14 Non-Material Amendments. The Executive Director is authorized to
-----------------------
approve and execute amendments to this Agreement which are not of a material
nature, including, but not limited to, the granting of extensions of time to
Development Manager.
4.15 Counterpart Originals: Integration.
----------------------------------
(a) This Agreement may be executed in duplicate originals, each of
which is deemed to be an original. This Agreement and its Exhibits represent the
entire understanding of the parties and supersedes all negotiations or previous
agreements between the parties with respect to all or any part of the subject
matter hereof.
(b) All waivers of the provisions of this Agreement must be in writing
and signed by the appropriate authorities of both Agency and Development
Manager.
4.16 No Waiver. Failure to insist on any one occasion upon strict
---------
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any rights or powers hereunder at any one time or more times
be deemed a waiver or relinquishment of such other right or power at any other
time or times.
4.17 Termination of Agreement.
------------------------
(a) If either party should fail to comply with any material provision
of this Agreement, the other party may inform the defaulting party by written
notice of its intent to terminate the Agreement unless the defaulting party
cures the default within thirty (30) calendar days or such longer period as
reasonably may be necessary, provided that within such 30-day period the
defaulting party commences and thereafter diligently proceeds to prosecute such
cure. Upon the failure of the defaulting party to cure the default within said
period the Agreement may be immediately terminated.
17
(b) This Agreement may be terminated by Agency, pursuant to paragraph
4.8 above, upon at least thirty (30) days written notice to Development Manager.
In such event, compensation shall be payable to Development Manager in
accordance with Section 4.8.
4.18 Successors and Assigns. Agency and Development Manager,
----------------------
respectively, bind themselves, their partners, successors, assigns and legal
representatives to the other party to this agreement, and to the partners,
successors, assigns and legal representatives of such other party with respect
to all covenants to this Agreement. Neither Agency nor Development Manager
shall assign or transfer any interest in this Agreement without the written
consent of the other; provided that Development Manager may assign its interest
in the Agreement to any entity which is established to succeed to the property
ownership, development or management activities of Xxxxxx Industries and/or its
affiliates ("Xxxxxx"); or any other entity controlled by or under common control
with Xxxxxx.
4.19 Extent of Agreement.
-------------------
(a) This Agreement represents the entire and integrated agreement
between Agency and Development Manager and supersede all prior negotiations,
representations or agreements between the parties, either written or oral. This
Agreement may be amended only by written instrument signed by both Agency and
Development Manager.
(b) Nothing contained herein shall be construed as creating the
relationship of employer and employees between the parties hereto, and
Development Manager shall be deemed at all times to be an independent contractor
with respect to its performance hereunder.
18
"DEVELOPMENT MANAGER"
Dated: November 20, 1995 XXXXXX TECHNOLOGY COMPANY, a California
------------- corporation
By: /s/ C. Xxxx Xxxxxxx
--------------------------
C. Xxxx Xxxxxxx
President
"AGENCY"
Dated: November 21, 1995 REDEVELOPMENT AGENCY OF THE CITY OF
------------- RIVERSIDE
By: /s/ Xxxxxx X. Wales
--------------------------
Xxxxxx X. Wales, P.E.
Executive Director
APPROVED AS TO FORM:
Agency Special Counsel
By: /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx, Esq.
Xxxxxx, Xxxx & Xxxx
19
EXHIBIT A
---------
Design Documents
October 23, 1995
ARCHITECTURAL-CORE & SHELL ISSUE DATE
-------------------------- ----------
A-00 Cover Sheet
A-01 Title Sheet, Sheet Index, etc. 10-09-95
A-1.10 Site Plan 10-09-95
A-1.11 Enlarged Site Plan / Details 10-09-95
A-2.10 First Floor Plan 10-09-95
A-2.11 First Floor Plan (Partial) / Roof Plan 10-09-95
A-2.12 Second Floor Plan 10-09-95
A-2.13 Third Floor Plan 10-09-95
A-2.14 Roof Plan 10-09-95
A-3.10 Exterior Elevations 10-09-95
A-3.11 Exterior Elevations 10-09-95
A-3.12 Partial and Enlarged Exterior Elevations 10-09-95
A-3.20 Building Sections 10-09-95
X-0.00 Xxxxxxxx Xxxxxxxx 00-00-00
X-0.00 Xxxx Sections 10-09-95
A-3.23 Wall Sections 10-09-95
A-3.24 Enlarged Partial Bldg. Sections 10-09-95
A-3.30 Exterior Wall Details 10-09-95
A-3.31 Exterior Wall Details 10-09-95
A-3.32 Exterior Wall Details 10-09-95
A-3.33 Exterior Wall Details 10-09-95
A-3.40 Roof Details 10-09-95
1
A-4.10 Enlarged Core Plans (North) 10-09-95
A-4.11 Enlarged Core Plan (South) 10-09-95
A-4.12 Enlarged Core Plans (South) 10-09-95
A-5.10 Stair Sections / Elevator Sections 10-09-95
A-5.11 Stairs Sections / Elevator Sections 10-09-95
A-5.12 Miscellaneous Stair / Elevator Details 10-09-95
A-6.10 Interior Elevations 10-09-95
A-6.11 Interior Elevations 10-09-95
A-7.10 Material and Finish Schedules 10-09-95
A-7.11 Door Schedule and Details 10-09-95
A-7.12 Wall Types Schedule and Details 10-09-95
A-7.13 Interior Details 10-09-95
A-8.10 Enlarged Reflected Ceiling Plan 10-09-95
A-8.11 Enlarged Reflected Ceiling Plan 10-09-95
A-8.12 Enlarged Reflected Ceiling Plan 10-09-95
ARCHITECTURAL - TENANT IMPROVEMENT
---------------------------------
TI-2.11 Ground Floor T.I. Plan 10-09-95
TI-2.12 Second Floor T.I. Plan 10-09-95
TI-2.13 Third Floor T.I. Plan 10-09-95
TI-4.11 Enlarged Plans - Ground Floor 10-09-95
TI-4.12 Enlarged Plans - Second Floor 10-09-95
TI-4.13 Enlarged Plans - Third Floor 10-09-95
TI-6.10 Interior Elevations - Ground Floor 10-09-95
TI-6.11 Interior Elevations - Second Floor 10-09-95
TI-6.12 Interior Elevations - Third Floor 10-09-95
TI-6.13 Interior Elevations - Xxxxx Xxxxx 00-00-00
XX-0.00 Xxxxxx Xxxxx Reflected Ceiling Plan 10-09-95
TI-8.12 Second Floor Reflected Ceiling Plan 10-09-95
TI-8.13 Third Floor Reflected Ceiling Plan 10-09-95
2
STRUCTURAL
----------
S-1.1 General Notes 08-18-95
S-2.10 Foundation Plan 09-22-95
S-2.11 Foundation (Partial) Roof Plan (Partial) 09-22-95
S-2.12 Second Floor Framing Plan 09-22-95
S-2.13 Third Floor Framing Plan 09-22-95
S-2.14 Roof Framing Plan 09-22-95
S-3.1 Frame Elevations 09-22-95
S-4.1 Typ. Foundation Details 07-10-95
S-4.2 Concrete Details 09-22-95
S-5.1 Steel Details 09-22-95
S-5.2 Steel Details 09-22-95
S-5.3 Steel Details 09-22-95
S-6.1 Deck Details 09-22-95
LANDSCAPE DWGS
--------------
L.1 Irrigation Plan 08-21-95
L.2 Planting Plan 09-29-95
L.3 Details / Notes Irrigation and Planting 09-29-95
CIVIL DWGS
----------
1 Title Sheet 10-06-95
2 Grading Plan 10-06-95
3 Demolition Plan 10-06-95
4 County of Riverside 10-06-95
1 Water / Sewer Plan 10-06-95
3
*ARCHITECTURAL SPECIFICATIONS (SEPT. 1995)
------------------------------------------
D.B. Drawing is furnished by current design build subcontractors
ELECTRICAL DWGS. (9-19-95)
--------------------------
E-0.1 Symbols and Abbreviations. Title 24 09-19-95
E-1.1 Site Plan 09-19-95
E-2.11 First Floor Power Plan 09-19-95
E-2.12 Second Floor Power Plan 09-19-95
E-2.13 Third Floor Power Plan 09-19-95
E-2.14 Roof Plan 09-19-95
E-2.15 Mezzanine Plan/Roof Plan (Partial) 09-19-95
E-3.11 First Floor Communication Plan 09-19-95
E-3.12 Second Floor Communication Plan 09-19-95
E-3.13 Third Floor Communication Plan 09-19-95
E-4.11 First Floor Reflected Ceiling Plan 09-19-95
E-4.12 Second Floor Reflected Ceiling Plan 09-19-95
E-4.13 Third Floor Reflected Ceiling Plan 09-19-95
E-5.10 Lighting Fixture Schedule, Details 09-19-95
E-5.20 Details 09-19-95
E-6.10 One Line Diagram, Loan Calculations 09-19-95
MECHANICAL DWGS (9-19-95)
-------------------------
M-1 HVAC Legend and General Notes 09-19-95
M-2 First Floor Plan 00-00-00
X-0 Xxxxxx Xxxxx Xxxx 09-19-95
X-0 Xxxxx Xxxxx Xxxx 00-00-00
X-0 Xxxx Plan 09-19-95
4
M-6 Title 24 Forms 09-19-95
M-7 Title 24 Forms 09-19-95
PLUMBING DWGS (9-22-95)
-----------------------
P-01 Plumbing Notes Sched. & Calcs. 09-22-95
P-1.10 Plumbing Site Plan 09-22-95
P-2.11 First Floor Plumbing Plan 09-22-95
P-2.12 Second Floor Plumbing Plan 09-22-95
P-2.13 Third Floor Plumbing Plan 09-22-95
P-2.14 Plumbing Roof Xxxx 00-00-00
X-0.00 Xxx, Xxx & Xxxx Xxxxx Riser Diagram 09-22-95
P-3.12 Waste & Vent Riser Diagram 09-22-95
P-4.11 Enlarged Ground Core Plumbing Plan (South) 09-22-95
P-4.12 Enlarged 2nd/3rd Core Plumbing Plan (South) 09-22-95
FIRE PROTECTION DWGS (8-22-95)
------------------------------
1 Site Plan / General Notes 08-22-95
2 First Floor Reflected Ceiling Plan 08-22-95
3 Second Floor Reflected Ceiling Plan 08-22-95
4 Third Floor Reflected Ceiling Plan 08-22-95
5 First Floor Sprinkler Piping Plan 08-22-95
6 Second Floor Sprinkler Piping Plan 08-22-95
7 Third Floor Sprinkler Piping Plan 08-22-95
8 Pump Mezzanine Plan / Sections 08-22-95
Note: These are current construction documents furnished to date. These
documents are subject to change upon completion of drawings and
specifications.
5
EXHIBIT B
RIVERSIDE BANKRUPTCY COURT
REIMBURSABLE ITEMS 11/1/95
1 Legal - Leasing, Contracts, Negotiations $100,000
2 Gnrl Liab/Seismic/Floor (COC & DIC) Insurance $128,160
3 E & O Insurance $125,000
4 Architects, Engineers, Consultants $1,085,271
5 Renderings & Models $15,000
6 Environmental Assessments $40,000
7 A-E-C Reimbursable (0.05%) $49,168
8 Reproduction $103,475
9 Geotechnic Engineering $25,000
10 Testing & Inspection $109,770
11 Survey - ALTA, Parcel Subdivision $15,960
12 Fees, Permits, Bus. Tax - Lic. $300,000
13 Photos, Pub. Relations, Event, Site Sign $35,000
14 Estimating/Construction Management Services $1,374,347
Total Reimbursable items $3,506,151
