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HomeMy WebLinkAbout06-01-2015 Westpac Development Deposit Reimbursement Agreement - Lot 2 APN 002424022DEPOSIT/REIMBURSEMENT AGREEMENT TT is Deposit/Reirpbursement Agreement ("Agreement") is made on this Z. s-(!� day of 201 and between the City of San Luis Obispo, a municipal corporation and Charter City ("City") and Westpac Development Corporation, a California corporation ("Developer"). RECITALS WHEREAS, Developer is the owner of that certain real property located within the County of San Luis Obispo, California, generally described as Lot No. 2 San Luis Obispo, California (APNs _; referred to herein as the "Property"). 0 0 % 42LI aZZ WHEREAS, Developer proposes to entitle and/or develop the Property to accommodate a mix of residential and commercial uses, and has submitted a preliminary application with the City for various discretionary land use approvals including, an tentative subdivision map, PD rezoning, and environmental review (hereinafter referred to as the "Project"). WHEREAS, pursuant to the terms and conditions set forth herein, Developer has agreed to reimburse the City for its costs and expenses related to the processing of the Project, including the costs and expenses of City's retention of outside counsel for City's review of a proposed lease agreement as well as other professional consultants and all other reasonable costs related to the processing and review of the Project; and WHEREAS, City and Developer now desire to specify the terms of such reimbursement, including cash deposits to be made by Developer as provided herein. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, City and Developer agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. City to Retain Consultant. As part of the City's processing of the Project, the City may, in its sole and absolute discretion, retain, by means of a contract ("Consultant Contract"), the services of contract staff, a consultant, or consultants (hereinafter "Consultant") in order to assist with the City's processing of the Project. The presently contemplated scope of work of the Consultant is the City's review of the proposed lease agreement between City and Developer regarding the Property and all related documents thereto. The City reserves the right, in its sole and absolute discretion, to amend the scope of work as it deems necessary and appropriate in order for City to process the Project. City shall consult with Developer regarding the necessity for any such amendments but such amendments shall not require Developer's consent. 3. Developer to Cooperate. Developer agrees that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably cooperate with City and to provide all necessary documents or information reasonably requested of them by the City; provided, however, that the foregoing shall not require the disclosure of any documents or Developer Reimbursement Agreement information of Developer which Developer considers or by law is privileged, proprietary, or confidential, 4. City's Selection of Consultant. City acknowledges that it has selected O'Conner Cochran, LLP to act as the Consultant for the Project pursuant to the terms hereof. Developer agrees that the City may, in its sole and absolute discretion, select another consultant to replace the Consultant identified above and may do so without consulting with Developer or obtaining Developer's prior approval. Developer further acknowledges and agrees that the City may need to retain additional consultants that are not known at this time in order to process the Project. In such event, the City shall notify Developer of the need for any additional consultants. If Developer disagrees with the City's need to retain additional consultants, then Developer's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 10. Developer understands that such termination will relieve the City of further obligation to process the Project. 5. Developer's Reimbursement of Consultant Costs. Expenses and Administrative Fees. Developer shall reimburse the City for all of its costs and expenses regarding to the Consultant Contract ("Consultant Costs") and any related administrative fees and expenses incurred by the City. The City has preliminarily reviewed the scope of work required of the Consultant and has estimated the aggregate Consultant Costs and fees to be no more than $ 52,000 ("estimated Consultant Costs") including a 30% administrative fee. 6. Deposits to be made by Developer. a. Initial Deposit. Developer shall provide the City with an initial deposit in the amount of 50% of the estimated Consultant Costs as provided in Section 5 above. The Initial Deposit, as well as any subsequent Replenishment Deposits(s) described in Section 6(b) below (collectively the "Deposit"), may be commingled with other funds of the City. b. Replenishment Deposit(s). Subject to the provisions of this Agreement, Developer hereby agrees that whenever the amount of the Deposit declines to $ 26,000 or less, the City may request an additional deposit in an amount necessary to return the Deposit to an amount sufficient to cover all anticipated costs under the Consultant Contract as City may determine. Developer shall deliver a Replenishment Deposit to City within fifteen (15) days following such written request. c. Suspension of Work. Any work on the Project shall be suspended if the Deposit is not timely replenished. d. Records. City shall at all times maintain records as to the expenditure of the Deposit. Within fifteen (15) days of written request by Developer, City shall provide Developer with copies of each statement of invoice received from Consultant(s). e. Return of Deposit. Within fifteen (15) days following the termination of this Agreement, City shall return any then unexpended portion of the Deposit to -2- Developer Reimbursement Agreement Developer, without interest, less any amount owed to the City by Developer, together with an accounting as to how the funds have been expended. 7. Agreement Not Debt or Liability of City. It is hereby acknowledged and agreed that this Agreement is not a debt or liability of City. City shall not in any event be liable hereunder other than to return the unexpended and uncommitted portions of the Deposits and to provide an accounting as provided in Section 6.e above. City shall not be obligated to advance any of its own funds with respect to the Consultant Costs. 8. Conflicts of Interest. a. Consultants Work for City. City has sole discretion to direct the work and evaluate the performance of the Consultant and its employees assigned to work on the Project, and City retains the absolute right to terminate or replace at any time any such person or entity. Any documents prepared hereunder or any approvals grants shall reflect the independent judgment of the City. Accordingly, even though the funds provided hereunder shall be utilized to retain Consultants and for administrative costs, such Consultants shall work solely and exclusively for the City and shall not take direction or guidance from Developer. b. Selection and Payment by City. City has sole and absolute discretion to select which of its Consultants are assigned to work on the Project. City has the sole and absolute discretion to determine the amount of compensation paid to Consultants assigned to work on the Project. c. No Employment by Developer. Developer represents and warrants that for the 12 months preceding the submission of its Project application, it has not entered into any arrangement to pay financial consideration to, and has not made any payment to, the Consultant. d. City to Retain Absolute Discretion Regarding Project Approvals. Developer acknowledges and agrees that notwithstanding Developer's reimbursement obligations under this Agreement, the City remains free to exercise its independent judgment in the processing and approval of the Project and further acknowledges and agrees that City is not obligated to approve any or all of the proposed uses, permits or other entitlements for the Property, to approve any lease arrangements with Developer, to approve any environmental documents or general plan or municipal code amendments which may be required for any of the uses contemplated for the Property. Developer warrants and represents that no City official, officer, Consultant, agent or attorney has represented, expressly or impliedly, that the City will approve any proposed use of the Property or enter into any type of development agreement. Developer understands that there may be numerous legislative and quasi-judicial decisions to be made by the City with regard to the development of the Property; that all such decisions of the City with regard to the Property and the contemplated uses of the Property will be made only after compliance with all the City's statutory and other legal obligations -3- Developer Reimbursement Agreement and after considering all appropriate information and evidence; and that such evidence may cause the City to disapprove any or all of the contemplated uses of the Property. Notwithstanding anything in this Agreement to the contrary, the City retains all authority and discretion granted to it by law to approve, disapprove or modify any of the proposed uses of the Property. e. Attorney -Client Relationship. Developer acknowledges that nothing herein shall create an attorney client relationship between Developer and Consultant and that such relationship shall vest exclusively between Consultant and City. Developer hereby waives any conflicts of interest related to its reimbursement of Consultant's fees and expenses. 9. Term. The term of this Agreement shall commence on , 2014, and, except as provided herein, shall terminate when all work by the Consultant Contract has been completed to the City's reasonable satisfaction and Developer has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Consultant Costs and Excess Costs, if any. Developer's obligation to reimburse the City as provided in this Agreement shall survive the termination of this Agreement pursuant to this Section 9. 10. Early Termination. For good cause, the City may terminate this Agreement prior to the term set forth in Section 9 above, without cost or liability to the City, upon thirty (30) days prior written notice to Developer. Developer, upon thirty (30) days' prior written notice, may, in its reasonable and sole discretion, terminate this Agreement prior to the end of the tern set forth in Section 9 above, provided that Developer has satisfied all of its obligations under this Agreement to date of such termination that Developer has given the City written notice withdrawing its applications(s) for the Project. Within two (2) business days following either the City's decision to terminate this Agreement or the City's receipt of wriiien notice indicating Developer's decision to terminate this Agreement, the City shall notify the affected Consultants and instruct them to cease work under this Contract. 11. Remedies Upon Default. An event of default shall be deemed to exist upon the occurrence of all of the following: a. Either the City or Developer has, without legal justification or excuse, breached any one or more of its obligations under this Agreement; and b. The non -defaulting party has sent written notice to the party claimed to be in default, specifying the default and what actions the non -defaulting party asserts should be taken to remedy the default; and c. The party claimed to be in default has not, within ten (10) days following receipt of the written notice described above, either corrected the default or taken actions, reasonably satisfactory to the non -defaulting party, to remedy the default within a reasonable period of time, but in no event longer than thirty (30) days after receipt of the written notice described in (b) above. -4- Developer Reimbursement Aareement Following an event of default, the non -defaulting party may exercise any and all remedies available to it pursuant to this Agreement, or at law or in equity, including, without limitation, instituting an action for damages, injunctive relief, or specific performance. 12. Indemnification. To the fullest extent provided by law, Developer shall indemnify, defend and hold City its agents, officials, officers, employees harmless from and against any and all claims, causes of action, damages, lawsuits or liability, which arise from or relate to City's retention of Consultant and City's performance under the Consultant Contract except that Developer's duty to indemnify and defend as provided herein shall not extend to any claims or liability arising from the proven gross negligence or willful misconduct of City. Developer's duty to indemnify and defend shall survive termination of this Agreement. 13. Nan -Waiver of Ripahts or Remedies. The failure of a party to exercise any one or more of its rights or remedies under this Agreement shall not constitute a waiver of that party's right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on any one or more occasions by any party to this Agreement shall preclude that party from asserting any right to remedy available to it in the future. No course of conduct or act of forbearance on any one or more occasions shall be deemed to be an implied modification of the terms of this Agreement. 14. Assignability. This Agreement may not be assigned by either party without the prior and express written consent of the other party, which consent shall not be unreasonably withheld. In determining whether to approve a request by Developer to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee. 15. No Oral Modifications, This Agreement represents the entire understanding of the City and Developer and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified only by a writing signed by the authorized representatives of both the City and Developer. 16. 13indiM Upon Successors. This Agreement and each of its terms shall be binding upon the City, Developer and their respective officers, elected officials, Consultants, agents, contractors, and permitted successors and assigns. 17. Legal Challenges. Nothing herein shall be construed to require City to defend any third party claims and suits challenging any action taken by the City with regard to any procedure or substantive aspect of the City's approval of development of the Property, the environmental process, proposed uses of the Property or development agreement, if any. Developer may, however, in its sole and absolute discretion, appear as real party in interest in any such third party action or proceeding. If the City defends such action or proceeding, Developer shall be responsible to reimburse the City for whatever legal fees and costs, in their entirety that may be incurred by the City in defense of such action or proceeding. The City and Developer shall seek to jointly approve legal counsel, but the City shall have the absolute right to -5- Developer Reimbursement Agreement retain such counsel as it deems necessary and appropriate if such joint agreement cannot be reached. Developer shall reimburse City in the event of an award of court costs or attorney fees is made against City in favor of any third party challenging either the sufficiency of an environmental impact report or the validity of the City's approval of the Application if any. 18. Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or Developer against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its actual attorneys' fees and costs of litigation, including, without limitation, fling fees, service fees, deposition costs, arbitration of costs and expert witness fees, including actual costs and attorneys' fees on appeal. 19. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of San Luis Obispo, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of San Luis Obispo, California. The City and Developer hereby each consent to the personal jurisdiction of the court in any such action or proceeding. 20. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of each and every action required pursuant to this Agreement. 21. Covenant of Further Assurances. The City and Developer shall take all other actions and execute all other documents, which are reasonably necessary to effectuate this Agreement. 22. Interpretation. The City and Developer agree that this Agreement is the product of mutual negotiations and is an arms -length transaction. Each party has negotiated this Agreement with the advice and assistance of legal counsel of its own choosing. It is further agreed that the terms of this Agreement shall be construed in accordance with the meaning of the language and shall not be construed for or against either party by reason of authorship and the rule that ambiguities in a document shall be construed against the drafter of the document shall have no application to this Agreement. In construing and interpreting this Agreement, the finder of fact shall give effect to the mutual intention of the City and Developer, notwithstanding such ambiguity, and may refer to the facts and circumstances under which this Agreement is made and such other extraneous evidence as may assist the finder of fact in ascertaining the intent of the City and Developer. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and Developer both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety. 24. Headings. The headings of each section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each section. -6- Developer Reimbursement Agreement 25. Representations of Authority. Each party signing this Agreement on behalf of a party which is not a natural person hereby represents and warrants to the other party that all necessary legal prerequisites to that parry's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the party on whose behalf he or she signs. 26. Notices. Notices required under this Agreement shall be sent to the following: If to the City: City of San Luis Obispo Attn: City Manager 990 Palm Street San Luis Obispo, CA 93401-3249 Facsimile No. (805) 781-7109 If to Developer: Developer jAddress] Notices given pursuant to this Agreement shall be deemed received as follows: (a) If sent by United States Mail — five (5) calendar days after deposit into the United States Mail, first class postage prepaid. (b) If by facsimile — upon transmission and actual receipt by the receiving party. (c) If by express courier service or hand deliver — on the date of receipt by the receiving party. The addresses to notices set forth in this Section 24 may be changed upon written notice of such change to either the City or the Developer, as appropriate. 27. Days. Unless otherwise specified to the contrary, "days" in this Agreement shall mean calendar, not business days. [Signatures on following page] 7- Developer Reimbursement Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the first date set forth above. CITY OF SAN LUIS OBISPO A Municipal Corporation BC Katie tig City Manager 1114M 013" WESTPAC DEVELOPMENT CORPORATION off :.. ■ .EtI!��^ APPROVED AS TO FORM: Christine Dietric ~~ Michael Pfau, Attorney for Developer City Attorney -8-