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HomeMy WebLinkAboutC-2896/10 G- to REIMURSEMENT AGREEMENT Between CITY OF ARCADIA a California charter city and municipal corporation and Nevis Capital, LLC a California Limited Liability Company This Reimbursement Agreement ( "Agreement ") is made this ?, i "day of July, 2014, by and between the City of Arcadia, a charter city and municipal corporation (the "City "), and Nevis Capital, LLC, a California limited liability company (the "Applicant "). RECITALS This Agreement is made with respect to the following facts. A. The Applicant is the development manager and owner of certain real property as hereinafter described. The Applicant wishes to develop such real property for the purposes described hereafter. The subject property is an approximately 90 -acre undeveloped hillside property (the "Property ") that is located between the properties at 2109 and 2127 Canyon Road within the City of Arcadia, County of Los Angeles, State of California. The Property is located at the northeasterly portion of the City, and it is bounded by the City boundary to the west, north, and east, and single - family homes to the south. B. The Applicant desires to grade and develop the Property that is currently undeveloped, for a new building pad and a single - family residence (the "Project "). C. Before the Project may commence, the Applicant must obtain permits and approvals from the City related to the Project, which may include, without limitation, building permits, design review, and analysis of issues and certification or adoption of applicable documents under the California Environmental Quality Act ( "CEQA ") and must apply for those permits, approvals and the like by submitting applications (the "Permit Applications "). D. In order for the City to properly consider and review the Permit Applications, the City must involve environmental consultants to perform a peer review of an Environmental Impact Report (" BIR ") that has been prepared by the Applicant's representative. The Applicant has agreed to reimburse the City for fees and costs of the City's environmental consultants to perform the review ( "Costs and Expenditures "). AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and the Applicant agree as follows: SECTION 1. Incorporation 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 herein. SECTION 2. The City's Retention of an environmental consultant. As a necessary and indispensable part of its consideration of the EIR, the City shall retain the services of environmental consultants as set forth in Section 3 of this Agreement as the City may deem necessary in its reasonable but otherwise sole and absolute discretion. The City reserves the right, in its reasonable but otherwise sole and absolute 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 consideration of the EIR. The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under this Agreement which require the Applicant to reimburse the City for one - hundred percent (100 %) of the actual Costs and Expenditures incurred by the City, the environmental consultants shall be the contractors exclusively of the City and not of the Applicant. Except for those disclosures required by law including, without limitation, the California Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City, its environmental consultants, and City staff shall be, to the extent permissible by law, privileged and confidential work product and not subject to disclosure to the Applicant. The Applicant agrees that it shall have no claim to, nor shall it assert any right of ownership in, any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the environmental consultants and City staff. SECTION 3. The City's Selection of environmental consultants. The City has retained PMC as its environmental consultant. The City and PMC reserve the right, in their reasonable but otherwise sole and absolute discretion, to retain additional experts and consultants to assist in advising the City in the consideration of the EIR, all of which shall be deemed to be Costs and Expenditures. SECTION 4. The Applicant's Reimbursement of Costs and Expenditures. The Applicant shall reimburse the City for one hundred percent (100 %) of the actual Costs and Expenditures incurred by the City, including, but not limited to, all costs incurred in consideration of the EIR. Costs and Expenditures shall include, but not be limited to, interaction and meetings with City officials concerning the EIR, research and analysis to enable the environmental consultants to advise the City on the EIR, written responses and other correspondence concerning the EIR, specific project related work such as review of draft documents, meetings between City staff and the environmental consultants. The City agrees that any Permit Application fees paid by the Applicant shall be used as a credit by the City to pay for actual Costs and Expenditures. SECTION 5. Payment of Reimbursement Amounts. All Costs and Expenditures shall be paid by the Applicant by advance deposit with the City of moneys sufficient to pay all such Costs and Expenditures. Based on the City's estimate of initial Costs and Expenditures, within ten (10) calendar days of execution of this Agreement, the Applicant shall make an advance deposit to the City in the amount of fourteen thousand eight hundred dollars ($14,800) that will be used to reimburse the City for all Costs and Expenditures already incurred by the City and future Costs and Expenditures incurred by the City. If additional funds are required to pay Costs and Expenditures, the Assistant City Manager/ Development Services Director shall make advance written demand upon the Applicant for such additional funds and the Applicant shall deposit such additional funds with the City within ten (10) calendar days of the date of receipt of such demand. Should the Applicant have questions or require further clarification, the Applicant shall request of the City information within said ten (10) day period needed to resolve any questions. The parties agree to meet as expeditiously as possible and negotiate in good faith within said ten (10) day period to resolve any disputes. Notwithstanding the above, the Applicant is still required to deposit the funds required by the City within said ten (10) day period and may indicate in writing that the Applicant is paying in protest of the disputed amount. At all times, however, the Applicant shall have on -hand funds necessary to cover all actual Costs and Expenditures. The deposits shall be used by the City solely to pay for Costs and Expenditures. The City shall refund any unexpended portion of the deposits, after payment or provision for payment of all Costs and Expenditures within forty-five (45) days after conclusion or termination of the City's consideration of and action on the last remaining Permit Application, provided there are no court actions or appeals then outstanding, and provided that any applicable statutes of limitations with respect to filing court challenges of the City's actions have lapsed. The City shall not accrue or pay interest on any moneys deposited with the City. SECTION 6. Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City and fully executed by the parties and shall terminate when all work required in considering the Permit Applications has been completed to the City's reasonable satisfaction, the City is fully satisfied that no further work is required in considering the Permit Applications, there are no court actions or appeals then outstanding, any applicable statutes of limitations with respect to filing court challenges of the City's actions have lapsed, and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to reimburse the City for Costs and Expenditures, whether or not paid by the City to environmental consultant and City staff 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 6. SECTION 7. 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. 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. SECTION 8. 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. SECTION 9. 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. SECTION 10. Legal Challenges and Indemnification. Notwithstanding any provision herein to the contrary, the Applicant agrees to indemnify, defend and hold harmless the City and its environmental consultants from and against any order, award, or judgment against the City for attorneys' fees, costs or damages resulting from consideration of the Permit Applications, including any appeal. The Applicant shall pay the attorneys' fees and costs at the private law rates as set forth in the legal services agreement between the City and the City Attorney. SECTION 11. 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 and equitable remedies available to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal. SECTION 12. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Arcadia, Los Angeles County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Los Angeles, California. The City and the Applicant each consent to the personal jurisdiction of the court in any such action or proceeding. SECTION 13. Severability. 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. SECTION 14. 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. SECTION 15. No Guarantees of Approval. The parties hereby acknowledge and agree that nothing in this Agreement shall be read or construed to constitute any guarantees or promises that the Permit Applications will be approved. In the event that the Permit Applications are not approved, the parties acknowledge and agree that the Applicant shall not be due any refund of Costs and Expenditures already paid, other than as set forth in Section 5 of this Agreement. Furthermore, the parties acknowledge and agree that the Applicant shall remain obligated to pay all Costs and Expenditures that may continue to accrue until this Agreement is terminated pursuant to the terms of Section 6 of this Agreement. SECTION 16. Payment Due Within Ten Calendar Days of Execution of the Agreement. The City and the Applicant both agree that within ten (10) calendar days of execution of this Agreement, all moneys owed to the City by Applicant for the advance deposit, totaling fourteen thousand eight hundred dollars ($14,800), shall be paid by the Applicant to the City. SECTION 17. 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. Notices. Notices required under this Agreement shall be sent to the following: If to the City: Jason Kruckeberg, Assistant City Manager/ Development Services Director City of Arcadia 240 West Huntington Drive Arcadia, CA 91006 Fax No.: (626) 447 -3309 Email: jruckeberg@Arcadia.CA.gov If to the Applicant: Ta -Jen Lee Nevis Capital LLC 9674 Telstar Avenue #C El Monte, CA 91731 Fax No.: (626) 243 -4823 Email: jeff @nevishomes.com Notices given pursuant to this Agreement shall be deemed received as follows: (1) If sent by United States Mail — five (5) calendar days after deposit into the United States Mail, first class postage prepaid. (2) If by facsimile — upon transmission and actual receipt by the receiving party. (3) If by express courier service or hand delivery — on the date of delivery to the receiving party. (4) If by email — on the date of transmission. The addresses for notices set forth in this Section 17 may be changed upon written notice of such change to either the City or the Applicant, as appropriate. IN WITNESS WHEREOF, this Agreement has been executed by the City and the Applicant as of the date first written above. NEVIS CAPITAL, LLC, a limited liability company By: , /q (1—"' Signa Print Wame A& Title Date: CITY OF ARCADIA, a charter city and municipal corporation. Dominic L City Manager Date: �•� �- 3 2-01 AT EST: By: Lisaussenden Chief 'puty City Clerk APPROVED AS TO FORM: By: Stephen P. Deitsch City Attorney City of Arcadia