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HomeMy WebLinkAbout09-22-2015 John and Susan Madonna Trust - Deposit/Reimbursement AgreementDEPOSIT/REIMBURSEMENT AGREEMENT This Deposit /Reimbursement Agreement ( "Agreement ") is made on this _ day of 2015 by and between the City of San Luis Obispo, a municipal corporation and Charter City ( "City ") and the John and Susan Madonna Trust. RECITALS WHEREAS, the John and Susan Madonna Trust is the owner of that certain real property located within the County of San Luis Obispo, California, generally described as 12165 Los Osos Valley Road, San Luis Obispo, California (APNs 067 - 241 - 030,031 collectively referred to herein as the "Property "). WHEREAS, the John and Susan Madonna Trust proposes to entitle and develop the Property to accommodate a mix of uses including senior housing, multi - family housing, single - family housing, retail sales uses, park, and open spaces, and submit applications with the City for various discretionary land use approvals including, a Specific Plan and associated General Plan Amendment, Vesting Tentative Tract Map, Architectural Review, Airport Land Use Commission review and Cultural Heritage Committee review, (the "Project "). WHEREAS, pursuant to the terms and conditions set forth herein, the John and Susan Madonna Trust has agreed to reimburse the City for its costs and expenses related to the processing of the Project, including the costs and expenses of professional consultants and all other reasonable costs related to the processing and review of the Project; and, AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, City and the John and Susan Madonna Trust 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 attached hereto as Exhibit A and incorporated herein by this reference. 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 the John and Susan Madonna Trust regarding the necessity for any such amendments but such amendments shall not require the John and Susan Madonna Trust consent. 3. The John and Susan Madonna Trust to Coo erate. The John and Susan Madonna Trust 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 information of the John and Susan Madonna Froom Ranch Reimbursement Agreement Trust which the John and Susan Madonna Trust considers or by law is privileged, proprietary, or confidential. 4. City's Selection of Consultant. City acknowledges that it has selected SWCA Environmental Consultants to act as the Consultant for the Project pursuant to the terms hereof. The John and Susan Madonna Trust 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 the John and Susan Madonna Trust or obtaining the John and Susan Madonna Trust's prior approval. The John and Susan Madonna Trust 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 the John and Susan Madonna Trust of the need for any additional consultants. If the John and Susan Madonna Trust disagrees with the City's need to retain additional consultants, then the John and Susan Madonna Trust's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 10. The John and Susan Madonna Trust understands that such termination will relieve the City of further obligation to process the Project. The John and Susan Madonna Trust Reimbursement of Consultant Costs, Expenses and Administrative Fees. The John and Susan Madonna Trust shall advance the City for 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 less than $81,872 which includes Consultant Estimated cost of $62,978 plus a 30% administrative fee of $18,894. 6. Deposits to be made by the John and Susan Madonna Trust. a. Initial Deposit. The John and Susan Madonna Trust shall provide the City with an initial deposit in the amount of the estimated Consultant Costs and fees 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, the John and Susan Madonna Trust hereby agrees that whenever the amount of the Deposit declines to $5,000 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. The John and Susan Madonna Trust 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 the John and Susan Madonna Trust, IWA Froom Ranch Reimbursement Agreement City shall provide the John and Susan Madonna Trust 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 the John and Susan Madonna Trust, without interest, less any amount owed to the City by the John and Susan Madonna Trust, 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 Workfor 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 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 for the City and shall not take direction or guidance from the John and Susan Madonna Trust. 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 the John and Susan Madonna Trust. The John and Susan Madonna Trust 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. The John and Susan Madonna Trust acknowledges and agrees that notwithstanding the John and Susan Madonna Trust 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 environmental documents or general plan or municipal code amendments which may be required for any of the uses contemplated for the Property. the John and Susan Madonna Trust 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. The John and Susan Madonna Trust understands that there -3- Froom Ranch Reimbursement Agreement 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. 9. Term. The term of this Agreement shall commence on August 1, 2015 and, except as provided herein, shall terminate when all work by the Consultant Contract has been completed to the City's reasonable satisfaction and the John and Susan Madonna Trust 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. The John and Susan Madonna Trust 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 the John and Susan Madonna Trust. The John and Susan Madonna Trust, upon thirty (30) days' prior written notice, may, in its sole and absolute discretion, terminate this Agreement prior to the end of the term set forth in Section 9 above, provided that the John and Susan Madonna Trust has satisfied all of its obligations under this Agreement to date of such termination that the John and Susan Madonna Trust 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 written notice indicating the John and Susan Madonna Trust 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 the John and Susan Madonna Trust 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 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- Froom Ranch Reimbursement Agreement 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, the John and Susan Madonna Trust 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 the John and Susan Madonna Trust 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. The John and Susan Madonna Trust duty to indemnify and defend shall survive termination of this Agreement. 13. Non- Waiver 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. 14. Assignability. This Agreement may be assigned by the John and Susan Madonna Trust without the consent of the City. The John and Susan Madonna Trust, prior to the effective date of any assignment, shall give the City written notice of the assignment including the name, address, email address, telephone number and contact person or persons for the assignee. The City reserves the right, within its reasonable discretion, to request an increase in the deposit upon such assignment. 15. No Oral Modifications. This Agreement represents the entire understanding of the City and the John and Susan Madonna Trust 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 John and Susan Madonna Trust. 16. Binding Upon Successors. This Agreement and each of its terms shall be binding upon the City, the John and Susan Madonna Trust 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. The John and Susan Madonna Trust 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 John and Susan Madonna Trust shall be responsible to reimburse the City for whatever legal fees and costs, in their entirety that -s� Froom Ranch Reimbursement Agreement may be incurred by the City in defense of such action or proceeding. The City and the John and Susan Madonna Trust shall seek to jointly approve legal counsel, but the City shall have the absolute right to retain such counsel as it deems necessary and appropriate if such joint agreement cannot be reached. The John and Susan Madonna Trust 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 the John and Susan Madonna Trust 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, filing 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 the John and Susan Madonna Trust 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 the John and Susan Madonna Trust shall take all other actions and execute all other documents, which are reasonably necessary to effectuate this Agreement. 22. Interpretation. The City and the John and Susan Madonna Trust 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 John and Susan Madonna Trust, 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 John and Susan Madonna Trust. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the John and Susan Madonna Trust both agree that they would have executed this Agreement notwithstanding the invalidity of such term or -6- Froom Ranch Reimbursement Agreement 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. 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 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. 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 the John and Susan Madonna Trust: John and Susan Madonna Trust c /o: John Madonna Construction PO Box 5310 San Luis Obispo, CA 93403 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 John and Susan Madonna Trust, 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- Froom Ranch Reimbursement Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the first date set forth above. CITY OF SAN LUIS OBISPO THE A Municipal Corporations- - By: 4, 4Z, LJ a V�lLicl)AX City Man er LTA a 0 `K It Eel C ►A 1 ,tine Dietrick Attorney ohn & Susan Madonna ED AS TO FORM: Legal Counsel for Applicant -8- `-Ie-t4 -c- SWCA Froom Ranch - Villagio Specific Plan SCOPE 0I VV 0'PK The scope of work outlined below involves project management tasks associated with Planning Commission, City Council, and Cultural Heritage Committee review of the applicant's proposal, application package review, preparation, distribution, and management of the Request for Proposal (RFP) process, selection of an environmental consultant for preparation of the Environmental Impact Report (EIR), preparation of the Notice of Preparation (NOP) and associated EIR scoping, and initial Native American consultation efforts. SWCA assumes that a separate scope of work for management of the project through preparation of the EIR and City hearings on the Final EIR and the applicant's entitlement requests will be provided once the application has been deemed complete in coordination with the City. TASK 1. FORMAL MEETINGS AND HEARINGS This task includes presentation of the project to the Planning Commission, City Council, and Cultural Heritage Committee in order to obtain initial direction regarding key policy and code interpretations and key components of the project (i.e. development above the 150 -foot elevation line, mix of proposed uses, consistency with the LUCE vision, management of historic resources, and realignment and restoration of Froom Creek). These sessions will be scheduled in coordination with City staff and the applicant, and will include preparation of a staff report. SWCA will prepare and present a presentation and respond to questions. It is anticipated that the applicant's team will also contribute to the presentation of the project. The staff report and presentation to the City Council will include a request to proceed with a Request for Proposals and to grant the Community Development Director approval to select and contract with an environmental consultant for preparation of the EIR (refer to Task 2 below). We understand that a separate meeting granting approval of the Request for Proposals and approving a contract with the selected environmental consultant will not be required. This task also includes presentation of the project to the Airport Land Use Commission, following the applicant's submittal of entitlement requests to the City. This will include coordination with the County of San Luis Obispo, provision of any necessary materials and information to the County, and attendance at the hearing to present information and respond to questions. TASK 2. REQUEST FOR PROPOSALS AND CONSULTANT SELECTION Under this task, SWCA will prepare the RFP using the City's template. The administrative draft(s) will be circulated among City staff for review and approval. SWCA will work with the City to compile a mailing list of third -party consultants to receive the RFP and distribute the RFP to the identified consultants. Ms. Scott will be available to respond to consultant questions regarding the RFP on behalf of the City, and will maintain these records for the City files. Upon receipt of consultant proposals, Ms. Scott will review and rank the submittals using a review matrix prepared in coordination with the City. Ms. Scott will meet with the City to discuss the rankings. It is anticipated that the City would like to conduct interviews prior to selection of a consultant; therefore, SWCA will prepare a list of interview questions for City approval, schedule the interview date(s) and times for each selected consultant, coordinate the meeting room reservation, and conduct the interviews with City staff and the prospective consultants. Following interviews, Ms. Scott will work closely with City staff to identify the preferred consultant, and will contact all consultants via phone and letter regarding the City's decision. Following successful selection of the consultant, SWCA will coordinate refinement of the EIR Scope of Work with City staff (which may include review of a revised Scope of Work from the selected consultant), and prepare a draft contract for services (using the City's template) for the City's approval and use. Page 1 1 SWCA Froom Ranch - Villagio Specific Plan TASK 3. APPLICATION REVIEW At this time, the applicant has not yet submitted a formal application package to the City. SWCA will conduct initial completeness review of the provided forms and materials consistent with City policy, and within the mandated 30 days upon the City's acceptance of the application. In the event additional information is necessary to deem the application complete, we will prepare an internal draft letter providing clear direction to the project applicant, including references to applicable codes and policies that the project may potentially be inconsistent with. At this stage in the process, we also identify any known information necessary to complete environmental review in order to minimize and simplify the process for the applicant. Upon City review and approval, we will finalize the letter and submit it to the applicant. This process will include coordination with applicable City departments and regional agencies, pursuant to the City's standard practice. Any identified information needs will be incorporated into the initial completeness review letter. Upon receipt of additional information from the applicant, we will conduct a thorough review, and when applicable, provide a draft "application deemed complete" letter for the City's review and approval. The final letter will be submitted to the applicant. TASK 4. NOTICE OF PREPARATION AND EIR SCOPING In coordination with City staff, SWCA will prepare an initial environmental study, proposed EIR work scope, and Notice of Preparation (NOP). SWCA will work with City Staff to prepare the NOP mailing list and distribute the NOP package to the State Clearinghouse, responsible and trustee agencies, and interested parties including but not limited to: all affected City Departments, the California Department of Transportation, California Department of Forestry and Fire Protection, California Department of Fish and Wildlife, U.S. Fish and Wildlife Service, Army Corps of Engineers, Native American Heritage Commission, State Water Resources Control Board, Regional Water Quality Control Board, County of San Luis Obispo, San Luis Obispo County Air Pollution Control District, utility companies, and interested parties who have requested notification. This task includes facilitation of a scoping meeting at a public hearing before the City of San Luis Obispo Planning Commission. The timing of this task may include the selected EIR consultant; we will continue to coordinate with the City regarding the scheduling of this task. TASK 5. NATIVE AMERICAN CONSULTATION We suggest initiating Native American consultation pursuant to Senate Bill 18 (SB 18) upon determination that the application is complete. This task will include submittal of consultation invitation letters to Native American Tribal Representatives and one initial consultation meeting with each responsive Representative. Compliance with Assembly Bill 52 (AB52) will be required. AB52 requires CEQA Lead Agencies (i.e. the City) to submit a consultation request to Native American Tribal Representatives who have requested notification within 14 days following determination that the application package is complete. We proposed to complete the notification letter and facilitate one initial consultation meeting with each responsive Representative. SWCA is prepared to initiate this scope of work immediately after receiving a signed contract. SWCA will prepare a formal schedule including meeting /hearing dates in consultation with the City. We anticipate completing the administrative draft staff report for the Planning Commission within three weeks of receiving the notice to proceed. Ms. Scott will work with the City to schedule the RFP distribution and response period, consultant interviews, and SWCA Froom Ranch - Villagio Specific Plan consultant ranking and selection. Application review and provision of a "request for information" or "application deemed complete" letter will be completed within the required 30 -day timeframe following the applicant's submittal of the application package and payment of City entitlement fees. COST ESTIMATE The budget for each task is a time and materials not -to- exceed estimate. We have attempted to be conservative in preparation of the budget with regard to the level of effort required so that the overall cost estimates are reasonable for your planning purposes. SWCA will not proceed with any work in excess of the time and materials not -to- exceed budget without prior authorization to proceed from the City and applicant. Table 1. Scope of Work Cost Estimate I /,,< K, I INjk,; ( I I Task 1.1. Planning Commission 32 $4,416.00 Task 1.2. City Council 32 $4,416.00 Task 1.3. Cultural Heritage Committee 24 $3,312.00 Task 1.4. Airport Land Use Commission 24 $3,312.00 Task 2.1. RFP Preparation (Administrative Draft and Final)' 37 $4,908.00 Task 2.2. Proposal Review (6), Coordination with City and Consultants, & Interviews (4) 52 $7,172.00 Task 2.3. Selected Consultant Coordination, Revised Scope of Work and Consultant Contract 24 $3,312.00 Task 3.1 Application Package Review, City Coordination, & Correspondence through "Deemed Complete" 144 $20,048.00 Task 4.1. NOP Preparation and Reproduction, NOP Mailing List 32 $3,968.00 Task 4.2. NOP Scoping Meeting 20 $2,580.00 Task 5.1. Initial Native American Consultation, Invitation Letters and Meetings (4), 40 $5,534.00 Project Total 461 $62,978.00 'Includes reproduction expenses Page 1 3 SWCA I Froom Ranch - Villagio Specific Plan ASSUMPTiONS For budgeting purposes, we are making the following assumptions: 1. The overall scope of work includes weekly status reports to be submitted to the City. 2. Up to six responses to the EIR RFP will be received, reviewed and ranked. 3. Up to four consultant interviews will be conducted. 4. SWCA will prepare and reproduce NOP packages, including hard copy materials and CDs (if applicable). 5. City staff will mail the NOP package using a mailing list developed by SWCA and the City. 6. City staff will participate in Native American Consultation (SB 18 and AB 52); this phase of the scope of work includes initial consultation invitation letters and one initial consultation meeting with each Tribal Representative (up to four individual meetings at the City and /or on the project site). 7. Preparation of the NOP package and initiation of Native American Consultation efforts will not occur until the applicant's application package has been deemed complete, unless otherwise directed by the City. 8. A separate scope of work for management of the project through preparation of the EIR and City hearings will be provided once the application has been deemed complete in coordination with the City. Page 1 4 City Manager Report tar S li Final City Manager A roval Approver Name Date Approved City Administration Michael Codron August 21, 2015 Reviewer Routing List Reviewer Name Date Reviewed City Attorney Jma 8/3/15 Finance & Information Technology mwP 8/7 July 21, 2015 FROM: Derek Johnson, Community Development Director RTM 7 -27 -15 PREPARED BY: Cori Ryan, Supervising Administrative Assistant SUBJECT: Reimbursement Agreement for consultant costs related to Froom Ranch development review process. RECOMMENDATION Approve the Reimbursement Agreement with the John and Susan Madonna Trust to secure payment for City administration fees, and consultant contract costs, estimated to be a total of $101,683. DISCUSSION Background The John and Susan Madonna Trust (Madonna/Froom Ranch) has completed the preliminary application process to explore a Specific Plan, Vesting Tentative Tract Map, property annexation into the City, pre- zoning of the property, and development of property. The property is identified as "Specific Plan -3 Madonna on LOVR" in the City's General Plan, and is located within the County of San Luis Obispo, adjacent to the City limits, located directly west of the intersection of Los Osos Valley Road and Calle Joaquin (Assessor Parcel Numbers [APNs] 067 - 241 -030 and 067 - 241 -030). The current County land use designations are Agriculture, Rural Lands, and Commercial Retail, and combining designations include Airport Review Area, Flood Hazard, Geologic Study Area, and Sensitive Resource Area. The conceptual project is a mix of uses including senior housing, multi- family housing, single - family housing, retail sales uses, park, and open spaces. General Plan Consistency The project requires a Specific Plan and associated General Plan Amendment, and related actions that would allow for the development of the Madonna/Froom Ranch as identified in the City's General Plan as Specific Plan Area SP -3. The intent is for the project to be generally consistent with the development parameters described in the Land Use and Circulation Element (LUCE) Update, as adopted in December 2014. Guidance for the project is found in Chapter 8, Section 8.1.5 of the Land Use Element. The applicant's conceptual plans show development above the 150 -foot elevation; therefore, the applicant is requesting Planning Commission and City Council review of LUCE Policy 6.4.7.H. (Resource Protection, Hillside Planning Areas), which states that the "Irish Hills area should secure permanent open space with no building sites above the 150 -foot elevation, in conjunction with any subdivision or development of the lower areas ". The applicant is also requesting Planning Commission and City Council review of key issues that will affect the design Froom Ranch Reimbursement Agreement Page 2 of the Specific Plan, such as the conceptual land use mix, alternatives for the management of the Froom Ranch historic complex present onsite, and conceptual plans for the realignment and restoration of Froom Creek. Reimbursement Agreement The proposed agreement will obligate the John and Susan Madonna Trust to reimburse the City for staff time and consultant costs required for the development review of the project, including the 30% administrative fee for managing consultants. The proposed Reimbursement Agreement covers consultant services for project management and development review process planning services (Attachment 1, Froom Ranch Reimbursement Agreement). SWCA Environmental Consultants has been selected as the consultant for the Project. SWCA was approved as an on -call consultant for planning services in September 2013. Council approved the request for Request for Proposals to provide planning on -call services, authorized the City Manager to execute agreements and authorized the Finance Director to execute and amend Purchase Orders for individual consultant services not -to- exceed the authorized carry forward amount on 9/3/13. Additional funds for Development Services' carry forward have been approved by Council and the City Manager on 2/18/14 and 6/17/14 and have a current balance of $428,000. SWCA has submitted a scope of work estimating cost at $78,218. The Reimbursement Agreement specifies that the John and Susan Madonna Trust will pay for planning services. The John and Susan Madonna Trust will reimburse the City for 100% of the City's actual costs as set forth in the Reimbursement Agreement. The City's direct and indirect costs, City administration fees, and consultant contract costs, are estimated to be a total of $101,683. The John and Susan Madonna Trust will be required to deposit the total estimated cost prior to the review of the project. IIW 10 1 u17MW1 The project will have no direct fiscal impact to the City. The Agreement requires the John and Susan Madonna Trust to pay fees and includes a 30% Administration Fee to cover the cost of contract administration providing $23,465.40 in cost recovery. ALTERNATIVES SWCA has been selected to provide on -call planning services for the Froom Ranch project. Pursuant to the terms of the Reimbursement Agreement, the John and Susan Madonna Trust has agreed to reimburse the City for its costs and expenses related to the processing of the project, including the costs and expenses of SWCA and all other reasonable costs related to the processing and review of the Project. An alternative to the current Reimbursement Agreement payment structure would require the termination of the Reimbursement Agreement and the subsequent processing of the proposed project using existing City Planning Department Staff or another qualified planning consultant. City Planning does not have the resources to devote to managing and processing this large and complex project. ATTACHMENTS 1. Froom Ranch Reimbursement Agreement Froom Ranch Reimbursement Agreement Page 3 2. 9/3/13 CAR — Unbudgeted Development Review Revenue 3. 2/18/14 CAR —FY 13/14 Mid Year Budget Update 4. 6/17/14 CAR — FY 14/15 Supplemental Bud eg t Update 5. SWCA Environmental Consultants Scope: of Work NNE !IWA