HomeMy WebLinkAboutWestpac Development Reimbursement Agreement - Parking Lot #2REIMBURSEMENT AGREEMENT
pet L�
This Reimbursement Agreement ("Agreement") is made this —LI day of Ja 1y 2014, by
and between the City of San Luis Obispo, a municipal corporation and Charter city (the "City"),
and WESTPAC DEVELOPMENT CORPORATION (the "Applicant").
RFC TTAL.0%
This Agreement is made with respect to the following facts:
A. The Applicant is the intended developer of that certain real property located within the
City of San Luis Obispo, County of San Luis Obispo, California, generally described as Lot #2.
This property constitutes the project site and is hereinafter collectively referred to as the "Property"
for the purposes of this Agreement.
B. The Applicant is contemplating the development of the Property as a mixed use
development. The Applicant has submitted applications for various discretionary land use
approvals for the development of the Property including, without limitation, tentative subdivision
map, PD rezoning, and environmental review pursuant to the California Environmental Quality Act
("CEQA"). All of the above applications shall be referred to collectively as the "Project."
C. To provide the City with the appraisal, and information necessary to the City's review
process concerning the development of the Property, it is necessary for the City to retain the
services of a certified appraiser and is hereinafter collectively referred to as the "Consultant" for the
purposes of this Agreement.
D. As a condition to the City's completion of the review process, the Applicant has agreed
to reimburse the City for the Consultants' costs and expenses related to the City's review process in
the manner and amounts set forth in this Agreement. The Applicant's obligation to reimburse the
City under this Agreement is to ensure that the City has the necessary resources to diligently and
efficiently process the Applicant's Project Application.
AGREEMENT
NOW, THEREFORE, in consideration of the following mutual promises and agreements,
City and Applicant agree as follows:
1. I_ncorporation of Recitals.
The parties agree that the'Recitals constitute the factual basis upon which the City and the
Applicant have entered into this Agreement. The City and the Applicant each acknowledge the
accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though
fully set forth at length.
Reimbursement Agreement
Garden Street Terrace- Appraisal
Page 2 of 9
2. City to Retain Consultant,
As a necessary and indispensable part of its fact-finding process relating to the review of the
Applicant's proposed uses of the Property, the City may retain, by means of a contract ("Consultant
Contract") in its reasonable and sole discretion, the services of the appraiser/consultant identified in
Section 4 of this Agreement. The presently contemplated scope of work of the respective
Consultant is attached hereto as Exhibit A. The City reserves the right, in its reasonable and sole
discretion, to amend the scope of work as it deems necessary and appropriate where such
amendments are reasonably necessary and related to the City's proper review and consideration of
the Applicant's Project.
The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under
this Agreement, the Consultant selected by the City shall be the contractor exclusively of the City
and not of the Applicant. Except for those disclosures required by law including, without
limitations, the Public Records Act, all conversations, notes, memoranda, correspondence, and other
forms of communication by and between the City and the Consultants shall be, to the extent
permissible by law, privileged and confidential and not subject to disclosure to the Applicant. The
Applicant agrees that it shall have no claim to, nor shall it assert any right in any reports,
correspondence, plans, maps, drawings, news releases or any and all other documents or work
product produced by the Consultant pursuant to the Consultant Contract. City shall include in the
Consultant Contract a termination provision authorizing the City to, upon short notice, terminate the
contract without cause by sending written notice of termination to the Consultant. Applicant
understands that it will not be a third party beneficiary to City's contract with consultants.
3. Applicant to Cooperate with Consultant.
The Applicant agrees to cooperate in good faith with the Consultant. The Applicant agrees
that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably
cooperate with the Consultant and to provide all necessary documents or information reasonably
requested of them by the Consultant; provided, however, that the foregoing shall not require the
disclosure of any documents or information of the Applicant which by law is privileged,
proprietary, confidential, or exempt from disclosure under the Public Records Act.
4. City's Preliminary Selection of Consultant.
The City has preliminarily decided to retain the following as a Consultant pursuant to this
Agreement:
(A) Schenberger, Taylor, McCormick &Jenker Incorporated
The Applicant agrees that the City may select another Consultant to replace the Consultant
preliminarily identified above and may do so without consulting with the Applicant or obtaining the
Applicant's approval. The Applicant further agrees that the City may need to retain additional
Consultants that are not known at this time in order to process Applicant's project. The City shall
notify the Applicant of the need for any additional Consultants and shall amend this Agreement to
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal
Page 3 of 9
include the additional Consultants. If the Applicant disagrees with the City's need to retain
additional Consultants, then the Applicants sole and exclusive remedy will be to terminate this
Agreement pursuant to Section 9, subject to the Applicant's obligation to reimburse the City for all
Consultant Costs incurred by the City prior to the date of termination, whether or not yet paid by the
City to the applicable Consultant. Applicant understands that such termination will relieve the City
of further obligation to process its application.
5. Applicant's Reimbursement of Consultant Costs, Expenditures and Administrative
Fees.
The Applicant shall reimburse the City for one hundred percent (100%) of the actual costs,
expenditures and administrative fees incurred by the City relative to the Consultant Contract
("Consultant Costs"), as specified in Exhibit A. 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
less than $17,550 (Estimated Consultants Costs + 30% administration fee).
The City may incur aggregate Consultant costs up to the Estimated Consultant Costs without
specifically notifying the applicant. The City shall use reasonable good faith efforts to inform the
Applicant prior to amending the scope of services to be provided by the Contractor and incurring
Consultant Costs that exceed the Estimated Consultant Costs ("Excess Costs"). The Applicant's
obligation to reimburse the City for Excess Costs shall be contingent upon the City, before
completion of the work, providing the Applicant with written notice of the amendment to the scope
of work. The decision to incur Excess Costs and the amount of Excess Costs to incur shall lie with
the reasonable and sole discretion of the City.
If, after receiving notice of amendments to the scope of work, the Applicant disagrees with
the City's incurring of Excess Costs, then the Applicant's sole and exclusive remedy will be to
terminate this Agreement pursuant to Section 9, subject to the Applicant's obligation to reimburse
the City for all Consultant Costs incurred by the City prior to the date of termination, whether or not
yet paid by the City to the applicable Consultant. Applicant understands that such termination will
relieve the City of further obligation to process its application.
6. Payment of Consultant Costs and Fees.
City shall not be required to advance its own funds to pay Consultant. Applicant shall
deposit one hundred percent (100%) of the Consultant costs and all administrative fees (30% of
consultant costs). Upon receipt of these sums, City shall be authorized to employ the Consultant.
City may invoice the Applicant for any excess costs charged by the Consultant pursuant to Exhibit
A, and Applicant shall thereafter promptly deposit within fifteen (15) days sufficient funds with
City to enable City to make timely payment to the Consultant.
Within fifteen (15) days following receipt of written demand therefore by the Applicant, the
City shall provide the Applicant with such reasonable documentation as the Applicant may request
to substantiate any demands for payment.
Applicant understands that, despite the City's efforts to hire a qualified Consultant, it is
possible that the work of any Consultant may, in the City's opinion, prove to be defective, which
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal
Page 4 of 9
may in turn lead to the City refusing to pay some portion of Consultant's bills and/or the City
terminating the services of the Consultant. In such situations, the City may assign, and the
Applicant shall accept, the obligation of resolving and/or paying any outstanding bills of such
Consultant. If litigation ensues concerning Consultant's bills, Applicant must indemnify and defend
the City in that regard. In any situation in which a Consultant is discharged, the City will, pursuant
to Paragraphs 2 through 5, retain other Consultants at Applicant's expense.
7. City to Retain Absolute Discretion,
The Applicant acknowledges and agrees that notwithstanding the Applicant's
reimbursement obligations under this Agreement, the City is not obligated to approve any or all of
the proposed uses or permits for the Property, 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. The Applicant warrants and represents that no City official, officer, employee, agent or
attorney has represented, expressly or impliedly, that the City will approve any proposed use of the
Property. The Applicant 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 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.
The Applicant further understands that the City shall not be bound by any recommendations
or conclusions reached by the Consultant and that the City may accept or reject, in whole or in part,
any such recommendations or conclusions that the City, in its reasonable and sole discretion, deems
to be unreasonable or contrary to the City's land use ordinances and regulations or State statutes or
regulations.
- 10
The term of this Agreement shall commence on January XXX, 2014, and shall terminate
when all work required by each Consultant Contract has been completed to the City's reasonable
satisfaction and the Applicant has satisfied all of its obligations under this Agreement including,
without limitation, the obligation to pay the City for Consultant Costs and Excess Costs, whether or
not paid by the City to a Consultant prior to the date of termination. The Applicant's obligation to
reimburse the City as provided in this Agreement shall survive the termination of this Agreement
pursuant to this Section 8.
9. Early Termination.
For good cause, the City may terminate this Agreement prior to the term set forth in Section
8 above, without cost or liability to the City, upon thirty (30) days prior written notice to the
Applicant. The Applicant, upon thirty (30) days' prior written notice, may, in its reasonable and
sole discretion, terminate this Agreement prior to the end of the term set forth in Section 8 above,
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal
Page 5 of 9
provided, however, that the Applicant has satisfied all of its obligations under this Agreement to
date of termination regarding reimbursement to the City of both Estimated Consultants Costs and
Excess Costs and, furthermore, that the Applicant has given City written notice withdrawing its
application(s) for the Project.
Within two (2) City working days following either the City's decision to terminate this
Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate
this Agreement, the City shall notify the Consultant and instruct them to cease work under the
Consultant Contracts. The Consultant shall be instructed to bill the City for any work completed
prior to the date of termination of the Consultant Contract.
10. 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 the Applicant has, without legal justification or excuse,
breached any one or more of its obligations under this Agreement; and
(b) The nondefaulting party has sent written notice to the party claimed to be
in default, specifying the default and what actions the nondefaulting 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 nondefaulting 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.
Following an event of default, the nondefaulting 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.
1 t . Nonwaiver of Rights 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.
12. 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 the Applicant to assign this Agreement, the City may consider,
among other things, the proposed assignee's financial status and commitment to the Project. Any
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal Page 6 of 9
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.
13. No Oral Modifications.
This Agreement represents the entire understanding of the City and the Applicant 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 the Applicant.
14. Binding Upon Successors.
This Agreement and each of its terms shall be binding upon the City, the Applicant and their
respective officers, elected officials, employees, agents, contractors, and permitted successors and
assigns.
15. 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, or the proposed uses of
the Property. The Applicant 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, the Applicant 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 shall have the absolute right to retain such legal counsel as the City deems necessary and
appropriate. Applicant shall reimburse City in the event of any 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.
16. Attorneys' Fees.
In the event that any action or proceeding, including arbitration, is commenced by either the
City or the Applicant 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 aid equitable remedies available to it, its actual
attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees,
deposition costs, arbitration of costs and expert witness fees, including actual costs and attorneys'
fees on appeal.
17. 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 the Applicant each consent to the personal
jurisdiction of the court in any such action or proceeding.
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal
18. Time is of the Essence.
Page 7 of 9
Except as otherwise expressly stated, time is of the essence in the performance of each and
every action required pursuant to this Agreement.
19. Covenant of Further Assurances.
The City and the Applicant shall take all other actions and execute all other documents,
which are reasonably necessary to effectuate this Agreement.
20. Interpretation.
The City and the Applicant 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 the Applicant,
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 the Applicant.
21. Severabilit .
If any term or provision of this Agreement is found to be invalid or unenforceable, the City
and the Applicant 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.
22. 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.
23. 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 party'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.
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal Page 8 of 9
24. 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
If to the Applicant:
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 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 Applicant, as appropriate.
25. Days.
Unless otherwise specified to the contrary, "days" in this Agreement shall mean calendar,
not business days.
Dated: "ill-) W
ATT ST:
c
Clerk
�-Ity Attorney
CITY OF SAN LUIS BISPO
A 1 Co rati n (the "City")
B o
Katie ichtig, City Manager
4/3/2014
Reimbursement Agreement
Garden Street Terrace- Appraisal
Page 9 of 9
Dated
APPROVED AS TO
Hamish
Dated
APPROVED AS TO FORM:
Legal Counsel for Applicant
LM
Ifl
4/3/2014