HomeMy WebLinkAboutC-3018 C 361 V/
AGREEMENT
THIS AGREEMENT is executed as of this th day of jitriutkri, 2016 by and
between the CITY OF ARCADIA, a public entity ("City") and RUSNAK/ARCADIA, a
California corporation ("Company"). City and Company are individually referred to as a
"Party" and collectively as the "Parties." This Agreement is made with reference to the
following facts:
RECITALS
A. As set forth in a"Declaration of Covenants, Conditions and Restrictions" dated as
of June 10, 2013 and recorded December 6, 20.13 as Instrument No. 20131729128, Official
Records of Los Angeles County, California ("CC&Rs"), Company (through an affiliated entity)
is proceeding with construction to improve and expand the Mercedes Benz new and used car
dealership known as "Rusnak Arcadia" and located at 55 West Huntington Drive, Arcadia,
California ("Expanded Dealership"). In connection therewith, Company believes that the
appearance of the Expanded Dealership will be enhanced by placing underground those utilities
currently located on eight(8)utility poles located adjacent to the Expanded Dealership.
B. City agrees that the undergrounding of these utilities will enhance the appearance
of the Expanded Dealership and desires to cooperate with Company with respect thereto. The
Parties desire by this Agreement to describe the manner in which they will cooperate to cause
these utilities to be placed underground("Project").
The Parties therefore agree as follows:
1. Project Cost and Allocation. City and Company estimate the total cost of the
Project will be approximately ONE MILLION DOLLARS ($1,000,000.00). Based upon such
cost estimate, Company will be allocated twenty-five percent (25%) of such total costs, not to
exceed Two Hundred Fifty Thousand Dollars ($250,000.00), and City will be allocated seventy-
five percent (75%) of such total costs, not to exceed Seven Hundred Fifty Thousand Dollars
($750,000.00) (the City's allocation being subject to reimbursement by Company as described
herein).
2. Construction by Edison; Cost Overages. City will take appropriate action to
allow the Project to be designed and managed by Southern California Edison ("Edison") as a
Rule 20 project. City and Company acknowledge that the cost of the Project may be subject to
the requirement that prevailing wages be paid. Neither Party shall be obligated by this
Agreement to pay amounts in excess of those maximum amounts described in Section 1 above
unless both Parties so agree in a written amendment to this Agreement. City and Company will
cause Edison to design and bid the Project (and will be liable to Edison for any costs associated
with the design and bidding process). If the successful bid for the Project(including any design
or other costs charged by Edison) exceeds One Million Dollars ($1,000,000.00), this Agreement
shall be deemed terminated unless the Parties agree in writing to modify the maximum amounts
that will be paid as set forth in Section 1 above. Notwithstanding the foregoing, City agrees that
it may elect, without the need for further authorization from the City Council of the City, to
agree to a contingency increase of up to twenty percent (20%) in the total cost of the Project if
the Edison bidding process results in a cost in excess of One Million Dollars ($1,000,000.00). In
that case, City could agree to pay up to an additional Two Hundred Thousand Dollars
($200,000.00) for a total City payment of not to exceed Nine Hundred Fifty Thousand Dollars
($950,000.00); provided, however, that in the event of such an increased payment by City
beyond Seven Hundred Fifty Thousand Dollars ($750,000.00), Company's repayment obligation
as described in the Note will be increased to reflect the increased amount actually paid by City.
3. The Parties will pay the cost of the Project in accordance with the allocation
described in Section 1 above, such costs to be paid to Edison in accordance with Edison's normal
billing practices for such construction. City and Company will attempt to include in their
contract with Edison a provision requiring consultation with the Parties prior to the authorization
of any change order(s) that might increase the cost of the Project beyond the maximum amounts
agreed to by the Parties as set forth herein. In the event of change orders that increase the total
cost of the Project beyond the maximum amounts allocated between the Parties as set forth in
Section 1 above, each Party will remain liable for payment of its agreed upon percentage of any
such overage.
4. Promissory Note. Company agrees that the funds advanced by the City as
described herein will be reimbursed to the City in accordance with the provisions of the
Promissory Note ("Note") from Company to the City in the same form as that attached hereto as
Exhibit "A". The Note will be payable from Local Sales Tax Revenues from the
Dealership/Expanded Dealership (as those terms are defined in the CC&Rs). Company will
execute and deliver the Note to City within ten (10) days after the total cost of the Project is
known and the amount advanced by the City, calculated as set forth herein,has been determined.
The obligations for payment as set forth in the CC&Rs and in the Note are independent, and an
obligation to pay by the "Owner" under the CC&Rs or by the Company under this Agreement
(including the Note) shall not absolve the other from its payment obligations under the other
document.
5. Entire Agreement; Binding Effect. This Agreement represents the entire
understanding and agreement between the City and Company regarding the undergrounding of
utilities as described herein and supersedes any prior agreements and understandings between the
Parties related to such matters. This Agreement shall be binding upon and inure to the benefit of
the Parties,their successors and assigns.
6. Amendment. This Agreement may be modified only in a writing signed by both
Parties.
7. Governing Law; Venue. This Agreement shall be construed, interpreted and
applied in accordance with the laws of the State of California. Any litigation or arbitration
regarding this Agreement will be brought in Los Angeles County Superior Court or conducted in
Los Angeles County.
8. Attorneys' Fees. In the event of any action or proceeding to enforce or construe
any of the provisions of this Agreement, the prevailing party in such action or proceeding shall
be entitled to reasonable attorneys' fees and costs.
2
9. Counterpart . This Agreement may be executed in counterparts and when so
executed by the Parties, shall be binding upon them and each such counterpart will be an original
document.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth above.
CITY:
CITY OF ARCADIA,a public entity
N . ominic Lazzaretto
Its: City Manager
ATTEST: APPROVED AS TO LEGAL FORM:
s44-17FL,
City le Stephen P.Deitsch
City Attorney
COMPANY:
RUSNAK/ARCADIA,
a California corporation
/NOP
By: a it
Name:.
Its: .15=AM a GEO
By:
Name: RPiAo
Its:
3
9. Counterparts. This Agreement may be executed in counterparts and when so
executed by the Parties, shall be binding upon them and each such counterpart will be an original
document.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth above.
CITY:
CITY OF ARCADIA, a public entity
By:
Name: Dominic Lazzaretto
Its: City Manager
ATTEST: APPROVED AS TO LEGAL FORM:
941/V.,.
City Clerk Stephen P. Deitsch
City Attorney
COMPANY:
RUSNAK/ARCADIA,
•
a California corporation
Ara P
By: /�� .
Name: __
Its: i __ g %
PROMISSORY NOTE
$ Arcadia, California
December_,2015
FOR VALUE RECEIVED, the undersigned, RUSNAK/ARCADIA, a California
corporation ("Maker") hereby promises to pay to the CITY OF ARCADIA, a public entity
("Holder"), or order, at 240 West Huntington Drive, Arcadia, California 91066, the principal
sum of Dollars ($ ) [fill in an amount equal to
75% of construction costs or as otherwise calculated pursuant to the Agreement]. This Note
shall be non-interest bearing. The entire unpaid principal balance of this Note will be fully due
and payable ten(10) years following the date hereof(the"Maturity Date").
1. All payments hereunder shall be paid in lawful money of the United States of
America to Holder at 240 West Huntington Drive, Arcadia, California 91066 or such other place
as Holder may designate from time to time.
2. All payments on account of the indebtedness evidenced by this Note shall be
applied to the unpaid principal balance.
3. Intentionally deleted.
4. All amounts payable pursuant to this Note shall be paid from annual Local Sales
Tax Revenues from the Dealership/Expanded Dealership in excess of Eight Hundred Thousand
Dollars ($800,000.00) for each "Full Tax Year" during the term of this Note. All defined terms
used herein with respect to Local Sales Tax Revenues shall be as defined in Section 6 of the
Declaration of Covenants, Conditions and Restrictions recorded December 6, 2013 as Instrument
No. 20131729128, Official Records of Los Angeles County, California ("CC&Rs"). If the
funds from Local Sales Tax Revenues are not sufficient to fully satisfy the unpaid principal
balance and remaining interest prior to the Maturity Date, any such unpaid amounts will be fully
due and payable as of the Maturity Date.
5. Maker agrees to indemnify Holder and to hold Holder and Holder's successors
and assigns harmless from and against any and all claims, demands, costs, liabilities and
obligations of any kind or nature arising out of any default hereunder, including without
limitation all costs of collection, including reasonable attorneys' fees and all costs of suit, in the
event the unpaid principal sum of this Note and/or any interest thereon is not paid when due.
6. The indebtedness evidenced by this Note may be prepaid in whole or in part
without penalty at any time prior to the Maturity Date.
7. Following the maturity of the indebtedness evidenced hereby, whether by
acceleration or otherwise, any amount remaining unpaid to Holder shall thereafter bear interest at
the rate of ten percent(10%)per annum.
1
8. The obligations of Maker pursuant to this Note and of"Owner" pursuant to the
CC&Rs are independent and any payments by"Owner"pursuant to the CC&Rs shall not relieve
Maker of any payments for which it may be or become liable pursuant to this Note.
9. The obligations regarding "Ownership, Use and Operation of Property" described
in Sections 2.1, 2.2 and 2.4 of the CC&Rs are incorporated herein by reference and shall apply to
and be binding upon Maker with respect to its ownership, use and operation of the
Dealership/Expanded Dealership throughout the term of this Note.
10. Maker acknowledges and agrees that Maker shall not have any rights whatsoever
to set-off against amounts due hereunder or otherwise due Holder any amount or obligation due
Maker or claimed to be due Maker from Holder.
11. The unenforceability or invalidity of any provision or provisions of this Note as to
any persons or circumstances shall not render that provision or those provisions unenforceable or
invalid as to any other persons or circumstances, and all provisions hereof, in all other respects,
shall remain valid and enforceable.
12. This Note shall bind Maker and its successors and assigns and the benefits hereof
shall inure to Holder and Holder's successors and assigns.
13. Payments hereunder are due and payable in lawful money of the United States.
The validity, interpretation and performance of this Note shall be governed by and construed in
accordance with the laws of the State of California.
14. Time is of the essence of this Note.
MAKER:
RUSNAK/ARCADIA,
a California corporation
By:
Name:
Its:
2