HomeMy WebLinkAbout08-23-2021 Reimbursement Agreement with 1144 Higuera Street, LLC_ Abandoned
Date: August 23, 2021
Subject: Abandoned Agreement
The agreement entitled INFASTRUCTURE REIMBURSEMENT AGREEMENT, attached, was
abandoned by 1144 HIGUERA, LLC A CALIFORNIA LIMITED LIABILITY COMPANY.
Adriana Delgado
Administrative Assistant II
City of San Luis Obispo, City Clerk's Office
990 Palm Street, San Luis Obispo, CA 93401-3218
805.781.7100
slocity.org
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Delgado, Adriana
From:Horn, Matt
Sent:Thursday, August 19, 2021 5:06 PM
To:Delgado, Adriana
Cc:Johnson, Lee; Stanwyck, Shelly
Subject:RE: Reimbursement Agreement with 1144 Higuera St.
Hi Adriana,
From memory, I don’t believe that you will find an executed copy of the agreement. While routing the
agreement Nick Tompkins determined due to the uncertainty surround COVID, he would not be moving
forward with the project.
The agreement was not fully executed.
Thanks,
Matt Horn
Director of Public Works
919 Palm Street, San Luis Obispo, CA 93401-3218
E mhorn@slocity.org
T 805.781.7191
From: Delgado, Adriana <adelgado@slocity.org>
Sent: Thursday, August 19, 2021 4:19 PM
To: Horn, Matt <mhorn@slocity.org>
Subject: Reimbursement Agreement with 1144 Higuera St.
Hello Matt,
Would either you or a member of your team have an executed copy of the attached agreement? The copy that
the Clerk’s office has on file is missing a signature from the Developer.
Thank you,
Adriana Delgado
Administrative Assistant II
City Administration
E adelgado@slocity.org
T 805.781.7105
slocity.org
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INFRASTRUCTURE REIMBURSEMENT AGREEMENT
(Construction of Street Improvements)
This Reimbursement Agreement (“Agreement”) is entered into on ______________,
by and between the City of San Luis Obispo, a California charter city and municipal corporation
(the “City”), and 1144 Higuera Street, LLC, a California limited liability company (the
“Developer”), with regard to the subject property commonly known as 1101 Monterey Street in the
City of San Luis Obispo, Assessor’s Parcel No. 002-436-018 and legally described in Exhibit A,
attached hereto (the “Property”).
A. The purpose of this Agreement is to set forth the terms and conditions upon which
the Developer will construct and be reimbursed for certain public improvements to Monterey
Street associated with Developer’s private improvement project, which otherwise would not be
completed by the City at this time. The public improvements include, without limitation, the
following: traffic control associated with street improvements such as street leveling, grading,
paving, marking, striping, and directional markings; and work or replacement of the traffic signal
arms, including associated utilities, at Monterey and Santa Rosa Street, such improvement made
within the City’s right of way, all of which improvements are contained in the scope of work
outlined in Exhibit B, attached hereto (“Street Improvement Work”).
B. In conjunction therewith, Developer also agrees to complete improvements to a
temporary parking lot on Developer’s Property, which work was value engineered due to its
temporary nature and to allow for construction of a future parking garage.
C. In return for completing the Street Improvement Work associated with Developer’s
private project per the approved Public Improvement Plans (“PIP Plans”), the City agrees to
reimburse Developer for certain agreed costs incurred by Developer, which the parties agree
exceed amounts and scope of work that otherwise could be conditioned upon or exacted from the
Developer’s private improvement project ;
D. City agrees to reimburse Developer for the actual, documented costs of work
exceeding otherwise applicable fees and conditions of project approval, less the amount paid by
Developer attributable to value engineered savings, which amount the parties agree will be a credit
to the City in the amount of Two Hundred Thousand and 00/100 Dollars ($200,000.00) (the “City
Credit”).
In consideration of the above recitals, each of which is incorporated into and are a fully
operative and effective part of this Agreement, and for other good and valuable consideration, the
parties hereby agree:
1. Public Purpose. The City has determined that the Street Improvements Work
exceeding otherwise applicable Developer’s private improvement project fees and permissible
conditions, the associated reimbursement of Developer described herein, and the benefits to be
received in return by the City and the public are in the best interests of the City and the health,
safety, morals and welfare of its taxpayers and residents and is in accordance with public purposes
set forth in federal, state and local law and regulation. The City has further determined that
implementation of this Agreement and completion of the Street Improvement Work will further
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the goals and objectives of orderly development, and timely completion of improvements
complementing and in conformance with existing private approvals and public improvement plans
for Monterey Street, thereby benefiting the public.
2. Developer’s Obligation to Complete Improvements. Developer has substantially
completed the engineering of and improvements to its parking area located off Higuera Street and
has designed and will complete the Street Improvement Work on behalf of the City per the PIP
Plans.
3. Issuance of Improvement Contract. Developer, in its discretion, shall select the
contractor to complete the Street Improvement Work substantially based on the scope of work and
costs based on estimates provided in Exhibit B. Street Improvement Work.
4. Governmental Permits and Compliance with Laws. Before commencement the
Street Improvement Work, the Developer shall, at its own expense, secure or cause to be secured
any and all permits, bonds, entitlements, or other approvals that may be required by or from the
City or any other governmental agency with jurisdiction over the Street Improvement Work in
accordance with otherwise applicable City regulatory requirements.
5. Completion of Work. Contractor has completed the engineering for the parking
lot and Street Improvement Work and has completed the engineering of and improvements to its
parking area located off Higuera Street . Barring a Force Majeure Event, Developer will furnish
the necessary materials for and complete the Street Improvement Work no later than three (3)
months after the City’s approval of the applicable PIP Plans.
6. City’s Reimbursement Obligation. On Developer’s completion of the Street
Improvement Work per the PIP Plans, the City shall reimburse the Developer for its total costs
incurred for the Street Improvement Work less the City Credit, subject to City verification as to
reasonableness of costs claimed in excess of Developer’s otherwise required improvements and
within the scope of work, as set forth in this agreement, as follows:
(a) Developer will submit a certified pay application for the Street
Improvement Work reimbursement to the City upon completion of such work. The
reimbursement request shall be paid by the City as follows:
(i) The City's obligation to reimburse Developer for the Street Improvement
Work is contingent upon the City's receipt and approval, which shall not be unreasonably withheld
or delayed, of the following:
(a) The reimbursement request, which shall include a description of
the work performed, material supplied, and cost incurred or due;
(b) Bills, invoices, vouchers, statements and all other documents,
which shall be attached to the reimbursement request, evidencing the amount paid to third parties;
and
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(c) Conditional waivers and releases of mechanics’ liens stop notice
claims or other lien claim rights; and
(d) City will review any reimbursement request consistent with this
Agreement and if the reimbursement request is deemed complete and in compliance with the
provisions of this Agreement, the City will remit payment to Developer for the total amount of the
invoices (less only the City Credit amount associated therewith) no later than sixty (60) days after
such submittal.
7. Safeguarding and Indemnification.
(a) Safeguarding. Until formal final acceptance of the Street Improvement
Work, Developer shall give good and adequate warning regarding said Street Work Improvements
and will take all reasonable actions to protect the public.
(b) Indemnity. Developer agrees to indemnify, defend, and hold City and its
officers, employees, agents, representatives, and assigns (“City Indemnitees”) harmless from and
against any losses, claims, demands, actions, or causes of action (“Claims”), of any nature
whatsoever, arising out of or in any way connected with the performance of Developer, its
Contractor, any subcontractors, officers, employees, agents, or representatives under this
Agreement, including costs of suit and reasonable attorneys' fees. If the City Indemnitees are made,
a party to any action, lawsuit, or other adversarial proceeding in any way involving such Claims,
Developer shall provide a defense to the City Indemnitees, or at the City’s option, reimburse the
City Indemnitees their costs of defense, including reasonable attorneys’ fees, incurred in defense
of such claim. In addition, Developer shall be obligated to promptly pay any final judgment or
portion thereof, rendered against the City Indemnitees.
6. Conformity with State Labor and Work Safety Laws. Developer shall carry on the
design and construction of the improvements in a timely manner and in conformity with all
applicable laws, including but not limited to all applicable state labor and work safety laws and
regulations, including the provisions of Labor Code Sections 1770, et seq. relating to prevailing
wages, to the extent applicable to the improvements, as to which the City makes no representations.
The Developer agrees to hold the City harmless and to indemnify and defend the City from all
claims arising under the provisions of Labor Code §§ 1720, et. seq., including, but not limited to
the provisions of Labor Code Section 1726 and 1781.
7. Insurance. Prior to the commencement of any construction of the Street
Improvement Work, Developer, or Developer’s contractors, shall furnish or cause to be furnished
to the City duplicate originals and appropriate endorsements to the Developer’s as (or Developer's
general contractor's) commercial general liability and automobile insurance policies in the
amounts set forth below, naming the City as additional or co-insured:
(a) $1,000,000 for any one person; and
(b) $3,000,000 for any one occurrence; and
(c) $1,000,000 for any property damage.
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The above insurance amounts may be satisfied by a combination of primary and umbrella
insurance policies. The policies shall remain in effect during construction of the Street
Improvement Work shall be "occurrence," not "claims made," policies and shall be primary and
non-contributing to any insurance that the City may elect to obtain. Such policies shall contain a
full waiver of subrogation clause. The policies shall be issued by a carrier licensed to do business
in California, with a then-current Best's rating of A:VIII or better. Said policies shall provide that
they shall not be canceled or reduced in types of coverage or amount of coverage without at least
thirty (30) days' prior written notice to the City and that such reduction or cancellation shall
become effective until at least twenty (20) days after receipt by the City of the written notice
thereof. The policy amounts set forth above shall not limit or define the extent of the Developer’s
indemnity liability pursuant to Section 5(b) or any other provision of this Agreement or arising as
a matter of law or at equity.
The Developer shall also furnish or cause to be furnished to the City, upon written request
of the City, evidence satisfactory to the City that any contractor with whom it has contracted for
the performance of the Street Improvement Work carries workers' compensation insurance as
required by law.
8. Notice. Any notice, demand, request, consent, approval, or communication either
party gives to the other party shall be in writing and served personally or sent by prepaid, first-
class mail to the addresses set forth below the signatures hereto. Notice shall be deemed
communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section
8.
9. Assignment of Agreement. Neither party may assign its obligations hereunder to
any assignee without the knowledge and with written consent of the other party hereto, in which
the other party shall not unreasonably withhold consent. Assignment may be made only to an
assignee willing, financially capable, and competent to carry out the assignor’s obligations.
10. General Provisions.
(a.) If either party commences an action against the other arising out of or in
connection with this Agreement, including the filing of a lien or other legal action to compel
payment of the reimbursement, the prevailing party shall be entitled to recover reasonable
attorneys’ fees and legal costs from the losing party related to enforcement of the provisions of
this Agreement.
(b.) No officer or employee of City shall be personally liable to Developer or any
successor-in-interest in the event of any default or breach by City or for any amount which may
become due to Developer or to its successor or for breach of any obligation of the terms of this
Agreement.
(c.) The performance of the City's and Developer’s respective obligations under this
Agreement are not intended to benefit any party other than the City or the Developer, except as
may be expressly provided otherwise herein. No person or entity not a signatory to this Agreement
shall have any rights or causes of action against any Party to this Agreement as a result of that
Party's performance or non-performance under this Agreement, except as expressly provided
otherwise herein
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(d.) Developer warrants that it has not paid or given, and will not pay or give, any third
party any money or other consideration for obtaining this Agreement. Third parties, for the
purposes of this Section 10.d, shall not include persons to whom fees are paid for professional
services if rendered by attorneys, financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
(e.) All time for performance hereunder shall be extended where delays or defaults are
due to war; insurrection; any form of labor dispute; lockouts; riots; floods; earthquakes; fires; acts
of God or of third parties; third party litigation; acts of a public enemy; referenda; acts of
governmental authorities (except that the failure of the City to act as required hereunder shall not
excuse its performance); moratoria; epidemics; quarantine restrictions; shortag es of materials;
freight embargoes; and any other matter beyond the reasonable control of the party claiming the
extension (collectively, "Force Majeure Event”) provided, however, that the party claiming the
extension notify the other party of the nature o f the matter causing the default within thirty (30)
days from the occurrence thereof; and, provided further, that the extension of time shall be only
for the period of the Enforced Delays. However, deadlines for performance may not be extended
as provided above due to any inability of the Developer to obtain or maintain financing for the
construction and/or operation of the Street Improvement Work.
(f.) Except as otherwise provided herein, the terms, conditions, covenants, and
agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns,
and successors of the parties hereto.
(g.) Neither party to this Agreement relies upon any warranty or representation not
contained in this Agreement.
(h.) This Agreement shall be governed by and interpreted with respect to the laws of
the State of California.
(i.) Any failure or delay by either party in asserting any of its rights and remedies as to
any default, shall not operate as a waiver of any default or of any rights or remedies provided forth
herein.
(j.) Neither Developer nor any of Developer’s agents, contractors or subcontractors
shall be considered agents of the City in connection with the performance of Developer’s
obligations under this Agreement.
(k.) This Agreement may be amended at any time by the mutual consent of the parties
and by an instrument in writing signed by both parties.
(l.) If any provision or provisions of this Agreement are held unenforceable, all
provisions not so held shall remain in full force and effect.
(m.) The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and that
by executing this Agreement, the parties are formally bound to the provisions of this Agreement.
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(n.) This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned execute this Agreement on behalf of the
Parties.
THE CITY OF SAN LUIS OBISPO, a California
charter city and municipal corporation
By: _____________________________________
Name: __________________________________
Its: _____________________________________
Address: 990 Palm Street
San Luis Obispo, CA 93401
ATTEST:
____________________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
______________________________
J. Christine Dietrick, City Attorney
DEVELOPER:
1144 Higuera, LLC
a California limited liability company
By: ________________________________
Nicholas Tompkins, Manager
684 Higuera, Suite B
San Luis Obispo, CA 93401
Exhibit A-1
Exhibit A
Legal Description of Property
The land referred to in this Commitment is situated in the City of San Luis Obispo, County of San Luis
Obispo, State of California, and is described as follows:
PARCEL 1 AS SHOWN ON LOT LINE ADJUSTMENT NO. SLO AL 16-0244, AS EVIDENCED BY
DOCUMENT RECORDED OCTOBER 31, 2017 AS INSTRUMENT NO. 2017050014 OF OFFICIAL
RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THAT REAL PROPERTY IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO,
STATE OF CALIFORNIA BEING A PORTION OF BLOCK 30 ACCORDING TO THE OFFICIAL
MAP OF SAID cm FILED FOR RECORD IN BOOK A OF MAPS AT PAGE 46 IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY ALSO BEING A PORTION OF THE PROPERTY
SURVEYED AND SHOWN ON THE MAP FILED IN BOOK 107 OF LICENSED SURVEYS AT PAGE
15 (107-LS-15) IN SAID RECORDER'S OFFICE TOGETHER WITH A PORTION OF THAT REAL
PROPERTY DESCRIBED IN THE DEED FROM MICHAEL L. BLUM AND KAREN BLUM,
TRUSTEES OF THE BLUM LIVING TRUST DATED AUGUST 28, 1992, TO 1144 HIGUERA
INVESTMENTS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY RECORDED DECEMBER
18, 2015, AS DOCUMENT NUMBER 2015- 063452 IN SAID RECORDER'S OFFICE AND ALSO
SHOWN ON THE MAP FILED IN BOOK 3 OF LICENSED SURVEYS AT PA E 63 IN SAID
RECORDER'S OFFICE MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST WESTERLY CORNER OF THE PROPERTY DESCRIBED IN THE
DEED TO THE CITY OF SAN LUIS OBISPO RECORDED JANUARY 29, 1970, IN BOOK 1551 OF
OFFICIAL RECORDS AT PAGE 542, RECORDS OF SAID COUNTY; THENCE ALONG THE
NORTHWESTERLY LINE OF THE PROPERTY SO DESCRIBED NORTH 54°04'22" EAST, 10.00
FEET TO A NAIL AND TAG "L.S. 5702" PER SAID LICENSED SURVEY 107-LS-15 AND THE TRUE
POINT OF BEGINNING; THENCE ALONG THE NORTHEASTERLY LINE OF THE PROPERTY SO
DESCRIBED
1. SOUTH 36°21'02" EAST, 90.00 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE
2. NORTH 54°04'22" EAST, 126.03 FEET TO A LINE PARALLEL WITH AND 10.00 FEET
SOUTHWESTERLY OF AND MEASURED PERPENDICULAR TO THE NORTHEASTERLY LINE
OF THE PROPERTY DESCRIBED IN THE DEED FROM ROBERT C. HOYT AND ELLA M. HOYT
TO W. T. REID RECORDED SEPTEMBER 1, 1923, IN BOOK 162 OF DEEDS AT PAGE 407 (162-
DDS-407); THENCE ALONG SAID PARALLEL LINE
3. SOUTH 36°20'00" EAST, 21.48 FEET TO THE SOUTHWESTERLY PROJECTION OF A LINE
PARALLEL WITH AND 10.00 FEET SOUTHEASTERLY OF AND MEASURED PERPENDICULAR
TO THE NORTHWESTERLY LINE OF THE PROPERTY DESCRIBED IN THE DEED FROM
MICHAEL L. BLUM AND KAREN BLUM, TRUSTEES OF THE BLUM LIVING TRUST DATED
AUGUST 28, 1992, TO 1144 HIGUERA INVESTMENTS, LLC, A CALIFORNIA LIMITED
Exhibit A-2
LIABILITY COMPANY RECORDED DECEMBER 18, 2015, AS DOCUMENT NUMBER 2015-063452
IN SAID RECORDER'S OFFICE; THENCE ALONG THE PROJECTION OF LAST SAID PARALLEL
LINE.
4. NORTH 54°03'31" EAST, 10.00 FEET TO THE SAID NORTHEASTERLY LINE OF THE
PROPERTY DESCRIBED IN SAID DEED 162-DDS-407; THENCE CONTINUING ALONG LAST
SAID PARALLEL LINE
5. NORTH 54°03'31" EAST, 59.59 FEET; THENCE LEAVING SAID PARALLEL LINE
6. SOUTH 36°21'02" EAST, 111.13 FEET TO THE NORTHWESTERLY RIGHT-OF-WAY OF
HIGUERA STREET BEING 65.00 FEET WIDE; THENCE ALONG SAID RIGHT-OF-WAY
7. NORTH 53°37'58" EAST, 76.00 FEET TO THE NORTHEASTERLY LINE OF SAID DOCUMENT
NUMBER 2015-063452; THENCE ALONG SAID NORTHEASTERLY LINE
8. NORTH 36°21'02" WEST, 120.57 FEET TO THE MOST NORTHERLY CORNER OF SAID
DOCUMENT NUMBER 2015-063452; THENCE ALONG THE NORTHWESTERLY LINE OF SAID
DOCUMENT NUMBER 2015-063452
9. SOUTH 54°03'31" WEST, 135.59 FEET TO THE NORTHEASTERLY LINE OF SAID DEED 162-
DDS-407; THENCE ALONG SAID NORTHEASTERLY LINE.
10. NORTH 36°20'00" WEST, 101.48 FEET TO THE SOUTHEASTERLY RIGHT-OF-WAY OF
MONTEREY STREET BEING 68.00 FEET WIDE; THENCE ALONG SAID RIGHT-OF-WAY
11. SOUTH 54°04'22" WEST, 136.06 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY OIL GAS AND OTHER MINERALS AS RESERVED IN DEED
RECORDED JULY 15, 1998 AS DOCUMENT NO. 1998-043638 OF OFFICIAL RECORDS.
Exhibit B
Exhibit B
Proposed Scope of Public Street Improvements