HomeMy WebLinkAboutAGMT - Lampson Park Place LLC (Lampson Park Place Development Deposit/Reimbursement Agmt)Memo
To: Jill Ingram, City Manager
From: Iris Lee, Director of Public Works
Date: January 17, 2023
4665 Lampson Avenue — Lampson Park Place Development
Re: Deposit/Reimbursement Agreement
The City will be reviewing planning, environmental and technical analyses for the Lampson
Park Place development located at 4665 Lampson Avenue in the City of Los Alamitos.
While the development is situated in Los Alamitos, site access and other public services
would likely be provided through Seal Beach. Attached for your approval is the Lampson
Park Place, LLC (Developer) Deposit/Reimbursement Agreement to cover all staff time,
professional consultant costs, and all other resources that may be used to address the
development's permit and entitlement requests.
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DEPOSIT/REIMBURSEMENT AGREEMENT
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CITY OF SEAL BEACH AND LAMPSON PARK PLACE,
LLC RELATING TO THE DEVELOPMENT OF
4665 LAMPSON AVENUE, LOS ALAMITOS, CALIFORNIA
THIS DEPOSIT/REIMBURSEMENT AGREEMENT ("Agreement") is made and
effective this I -A day of January, 2023, by and between the City of Seal Beach, a California
charter city ("City"), and Lampson Park Place, LLC, a California limited liability company
("Developer"). City and Developer are each referred to as a "Party" and collectively
referred to as the "Parties" in this Agreement.
RECITALS:
A. Developer has submitted an application to the City of Los Alamitos ("Los
Alamitos") to construct a 246 unit residential housing project on a property located at 4665
Lampson Avenue (APN 130-012-35) (the "Project") in Los Alamitos;
B. Although the Project is located in Los Alamitos, the Project proposes that access
and utility service to the Project will be provided from and by the City.
C. Pursuant to the City's planning and environmental review process, City has
tentatively determined that the Project will require the following permits and entitlements
in City (together, the "Entitlements") [check those that apply]:
[ ] General Plan Amendment
[ ] Zoning Change
[ } Design Review
[ ] Conditional Use Permit
[ ] Variance
[ ] Master Plan
j } Precise Development Plan
j ] Negative Declaration / Environmental Impact Report
[ ] Tree Permit
[ ] Fence Permit
[ } Sign Permit
[X ] Other: Traffic impact analysis pursuant to Seal Beach's Transportation
Analysis Guidelines; Arbor Park impact analysis; feasibility study, evaluation
of service boundary issues and will serve letter for Water Service; feasibility
study ,evaluation of service boundary issues and will serve letter for Sewer
Service; right-of-way encroachment permit; plan review and approval of
proposed undergrounding of utilities and drainage; parking impact analysis;
and analysis of coordination of public safety services, and other project -
related expenditures that may impact the City.
D. Los Alamitos is the "lead agency," as defined by the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq.) ("CEQA" ), for the purpose of
conducting environmental review of the Project, and issued a Notice of Preparation of a
draft environmental impact report ("EIR"). Because the Project proposes that access and
utility service will be provided from and by City, the Notice of Preparation anticipates that
the EIR prepared by Los Alamitos will analyze potential use, construction and/or
improvement of access road(s) through streets within City's jurisdiction, provision of water
and sewer services from City, and use and/or improvement of water, sewer and other
utilities by or through property within City's jurisdiction.
E. Applicant desires that City, through its staff and professional consultants
including but not limited to contract planners, engineers, environmental professionals,
attorneys, and other consultants as the City shall deem necessary ("Consultants"), review
and take such actions and issue such approvals as may be necessary to facilitate the
completion of the Project in Los Alamitos.
F. Public Resources Code Section 21082.1 authorizes City to contract for
planning and environmental review services, including but not limited to review of, and
consultation with Los Alamitos, on Los Alamitos' preparation of the environmental
documents required by CEQA for the Project.
G. Government Code Section 66014 and Public Resources Code Section 21089
entitle the City to recover its reasonable costs of processing the applications for the land
use entitlements required by the Project.
H. This Agreement is intended to specify the terms of Developer's deposit and
reimbursement for City's planning and environmental review services,, including a cash
deposit to be made by Developer with on-going payments to City and deposit restoration
provisions as provided in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, and for other consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
Section 1. Conflicts of Interest.
(a) No Financial Relationship. Despite any funding mechanism, from the date
hereof through the date that is one (1) year after final resolution of Developer's application
for the Project, neither Developer, nor any of its representatives, agents, or other persons
acting in concert with Developer, shall enter into any financial relationship with an
Environmental Consultant (as defined below) utilized on the Project, or with any City official,
employee, or contractor. Nor, during such period, shall Developer propose to enter into
any future relationship with such Environmental Consultant(s) or with any City official,
employee, or contractor. This shall not prevent Developer from consulting with such
Environmental Consultant(s) as permitted by Section 5 of this Agreement.
(b) Developer's Representations and Warranties. Developer makes the
following representations and warranties for the twelve (12) month period preceding the
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submission of its application for the Project. Developer represents and warrants that it
has not entered into any arrangement to pay financial consideration to, and has not made
any payment to, the Environmental Consultant(s) or any of such Environmental
Consultants' agents or employees. Developer further represents and warrants that it has
not entered into any arrangement to pay financial consideration to, and has not made any
payment to, any City official, agent, or employee that would create a legally cognizable
conflict of interest as defined in the Political Reform Act (Cal. Gov. Code, § 87100 of seq.).
(c) Developer's Acknowledgments. Subject to the reimbursement
requirements set forth below, Developer acknowledges and agrees as follows with
respect to its application for the Project:
L City has sole discretion to select which of its employees and contractors
are assigned to work on the application;
ii. City has sole discretion to direct the work and evaluate the performance
of the employees and contractors assigned to work on the application, and City retains
the right to terminate or replace at any time any such person;
iii. City has sole discretion to determine the amount of compensation paid
to employees or contractors assigned to work on the application; and
iv. City, not Developer, shall pay employees and contractors assigned to
work on the application from a City account.
(d) The Parties acknowledge and agree that the processing of Developer's
application for the Project is not contingent on the hiring of any specific contractor.
Section 2. The Deposit; Additional Advances.
(a) Establishing and Supplementing Deposit. Within three (3) business days
following execution of this Agreement, Developer shall provide to City an initial deposit of
$ TBD ("Initial Deposit"), to be allocated pro rata to reimburse City for Eligible
Expenses, as defined in Section 2(b). City shall monitor its expenses and the balance in
the deposit account and whenever it believes, in good faith, that there will be insufficient
funds to pay all of City's expenses for the next ninety (90) days, City may make a written
request for additional funds (Additional Advance"), which shall state the existing balance
and the additional amount requested. City may request the funds it reasonably believes
necessary to cover a period not exceeding one -hundred eighty (180) days. The deposit
account shall generally maintain a minimum balance of five thousand dollars ($5,000.00).
The Initial Deposit and Additional Advance funds are hereinafter collectively referred to
as the "Deposit." Developer shall make the Additional Advance within five (5) business
days of City's written request therefor. If Developer fails to timely make the Additional
Advance, City may cease all additional work by staff and consultants on the Entitlements,
until City received the Additional Advance from Developer.
(b) Eligible Expenses. The Deposit shall be used to reimburse City for costs
incurred by City in connection with the following (all of which shall be deemed Eligible
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Expenses"): (i) preparing and/or reviewing any necessary reports and documents for the
Project, and additional supporting documentation, as necessary and appropriate with
City's role as provider of access and utility services for the Project; (ii) consulting with Los
Alamitos on the Project; (iii) preparing, negotiating, and approving the Entitlements and
conditions of the Project, including without limitation, the environmental documents;
(iv) preparing and negotiating all further legal documents in connection with the
transaction, including, without limitation, technical reports, reclamation pians,
development agreements, owner participation agreements, leases, franchise
agreements, waste hauling agreements, franchise ordinances, and similar agreements
and instruments, as applicable; (v) litigation and other legal costs associated with the
Project; (vi) the fees and expenses of any consultants employed by City in connection
with the Project; (vii) studies, reports, and design services related to development of any
Project -related infrastructure; and (viii) any and all other actions reasonably taken by City
in connection with development of the Project.
(c) Administration of Deposit. The Deposit may be commingled with other
funds of City for purposes of investment and safekeeping. The Deposit shall not accrue
interest. City shall administer the Deposit and use the Deposit to reimburse City for
Eligible Expenses. City shall maintain satisfactory accounting records as to the
expenditure of the Deposit at all times and shall provide Developer with monthly costs
reports.
(d) Unexpended Funds. Upon approval of all necessary Entitlements, the
expiration of all applicable appeal periods, and if a legal or administrative challenge is
made to the Entitlements, then upon the resolution of such challenge in accordance with
Section 8, City shall return any then -unexpended portion of the Deposit to Developer,
without interest, less an amount equal to any unpaid Eligible Expenses previously
incurred by City.
Section 3. Intentionally Omitted.
Section 4. Developer's Rights Concerning Expenses and Review of
Documents.
(a) Statements of Account. City shall provide Developer a summary of
expenditures made from the Deposit, and the unexpended balance thereof, whenever
requesting any Additional Advance and within ten (10) business days of receipt by City of
a written request therefore submitted by Developer. On a monthly basis, City shall provide
Developer with a cost report, including copies of each statement or invoice received from
any consultant whose costs are chargeable as Eligible Expenses.
(b) Review of Documents. City shall give Developer at least ten (10) days'
notice of, along with copies of, any proposed contract with any environmental consultant,
change orders, contract amendments, and comments on the environmental documents
received from third parties so that Developer shall have the opportunity to provide
comments prior to City finalizing, filing, or otherwise releasing the environmental
document and responses to comments. Developer may discuss issues with City or its
consultants and may make comments orally. City shall also use reasonable efforts to
permit Developer's review with respect to agendas and staff reports for all open City
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Council, Planning Commission and other public body meetings at which a proposed
environmental document is to be considered, and by providing Developer with draft
copies thereof prior to or concurrently with the transmission of such documents to the
appropriate body. It is expressly understood that consultants retained by City are under
contract solely with City, and City is free to disregard Developer's comments and exercise
its independent judgment in making payments to the consultants or revising or accepting
the consultant's work product, without any liability whatsoever to Developer therefor.
Section 5. No Obligation to Approve Proiect Entitlements.
The provisions of this Agreement shall in no way obligate City to take any action
approving the Project. City shall use its independent judgment in determining whether to
approve the Entitlements and any other documents required in connection therewith. City
may determine during the course of processing the Project application that final approval
will require issuance of other permits in addition to those listed as the Entitlements in
Recital B of this Agreement, due to changes in applicable state law, the Seal Beach
Municipal Code, the proposed Project, or other applicable regulations or documents. City
shall not be liable to Developer in any manner whatsoever therefor, other than for
providing the accounting of expenses as provided in this Agreement.
Section 6. 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 Deposit as provided in Section 2(d) of this Agreement,
and to provide an accounting under Section 5(a) of this Agreement. City shall not be
obligated to advance any of its own funds with respect to the documents or for any of the
other purposes listed in Section 2(b) of this Agreement. No City official, officer, employee,
or agent shall be personally liable to Developer under this Agreement to any extent.
Section 7. Indemnification and Hold Harmless.
(a) Non -liability of City Concerning Entitlements. The Parties acknowledge that
there may be challenges to the legality, validity, and adequacy of the Entitlements and/or
this Agreement in the future; and if successful, such challenges could delay or prevent
the development of the Project. City shall have no liability under this Agreement for
Developer's inability to develop the Project as the result of a judicial determination that
the CEQA determination by Los Alamitos, any other permit, entitlement or other approval
by Los Alamitos, and/or City's review of or action on the Entitlements, or any portions
thereof, are invalid, inadequate, or not made in compliance with law.
(b) Participation in Litigation: Indemnity. Developer agrees to indemnify,
protect, defend, and hold harmless City and its officials, officers, employees, agents,
elected boards, commissions, departments, agencies, and instrumentalities thereof, from
any and all actions, suits, claims, demands, writs of mandamus, liabilities, losses,
damages, penalties, obligations, expenses, and any other actions or proceedings
(whether legal, equitable, declaratory, administrative, or adjudicatory in nature), and
alternative dispute resolution procedures (including, but not limited to, arbitrations,
mediations, and other such procedures), including, but not limited to, attorneys' fees and
costs (herein the "Claims and Liabilities"), arising from or related to this Agreement or the
Entitlements; and Developer shall be responsible for any monetary judgment arising
therefrom, whether such Claims and Liabilities are brought under CEQA, planning and
zoning laws, the Subdivision Map Act, Code of Civil Procedure Sections 1085 or 1094.5,
or any other federal, state, or local statute, law, ordinance, rule, regulation, or any decision
of a competent jurisdiction. Developer may be required to deposit funds to cover its
indemnification obligation or to provide other security. If Developer fails to timely pay such
funds, City may abandon the action without liability to Developer and may recover from
Developer any attorneys' fees and other costs for which City may be liable for
abandonment of the action. City shall provide Developer with notice of the pendency of
such action and request that Developer pay for the costs to defend such action. It is
expressly agreed that City may utilize the City Attorney's office or use other legal counsel
of its choosing, and Developer shall promptly pay or reimburse City for any reasonable
legal costs and fees incurred by City. If Developer fails to do so, City may defend the
action and Developer shall be liable to City for the cost thereof, but if City chooses not to
defend the action, City shall have no liability to Developer. Developer's obligation to pay
the defense costs of City shall extend until final judgment, including any appeals.
Notwithstanding Developer's indemnity for Claims and Liabilities, City may abandon any
litigation following an adverse judgment or settle any litigation brought against it in its sole
and absolute discretion, and Developer shall remain liable, other than in the case where
judgment adverse to City and Developer's position has been rendered, or where a
settlement has been negotiated that is materially adverse to the Project. In the case of a
settlement without an adverse judgment, City may still settle the litigation contrary to
Developer, and shall then be responsible for its own litigation expense, but shall bear no
other liability to Developer. If Developer chooses to reduce the scope of the Project or
abandon the Entitlements in order to settle any such litigation, City shall reasonably
cooperate in effecting a settlement.
(c) Exception. The obligations of Developer under this Section shall not apply
to any claims, actions, or proceedings arising through the gross negligence or willful
misconduct of City, its members, officers, or employees.
(d) Survival of Indemnity Obligations. All indemnity provisions set forth in this
Agreement shall survive the expiration or termination of this Agreement.
Section 8. Notices.
Any notices, requests, demands, documents, approvals, or disapprovals given or
sent under this Agreement from one party to another (collectively, the Notices") shall be
given to the Party entitled thereto at its address set forth below, or at such other address
as such party may provide to the other parties in writing from time to time, namely:
If to Developer:
Lampson Place Partners, LLC
27702 Crown Valley Parkway, Suite D4-197
Ladera Ranch, CA 92694
Attn: Matt Waken
If to City:
City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Attn: Jill Ingram, City Manager
With a copy to:
Richards, Watson & Gershon
350 S. Grand Avenue, 37th Floor
Los Angeles, CA 90071
Attn: Craig Steele, City Attorney
Each such Notice shall be deemed delivered to the Party to whom it is addressed:
(i) if personally served or delivered, upon delivery; (ii) if given by fax, upon the sender's
receipt of an appropriate answerback or other written acknowledgement; (iii) if given by
registered or certified mail, return receipt requested, deposited with the United States mail
postage prepaid, seventy-two (72) hours after such notice is deposited with the United
States mail; (iv) if given by overnight courier, with courier charges prepaid, twenty-four
(24) hours after delivery to said overnight courier; or (v) if given by any other means, upon
delivery at the address specified in this Section.
Section 9. Choice of Law: Venue.
This Agreement, and any dispute arising from the relationship between the Parties,
shall be governed by, construed in accordance with, and interpreted under the laws of the
State of California. Any dispute that arises under or relates to this Agreement (whether
contract, tort, or both) shall be resolved in a California State Court in the County of Orange,
or if jurisdiction over the action cannot be obtained in a State Court, in a Federal Court in
the Central District of California.
Section 10. Entire Agreement.
This Agreement represents the full, final, and complete Agreement between the
parties hereto regarding the subject matter of this Agreement. No change or amendment
to this Agreement shall be valid unless in writing and signed by both Parties.
Section 11. Severability.
If a court of competent jurisdiction holds any provision of this Agreement to be
illegal, unenforceable, or invalid for any reason, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected.
Section 12. Attorneys' Fees.
In any litigation or other proceeding by which one Party seeks to enforce its rights
under this Agreement (whether in contract, tort, or'both) or seeks a declaration of any
rights or obligations under this Agreement, the prevailing party shall be awarded
reasonable attorneys' fees, together with any costs and expenses, to resolve the dispute
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and to enforce the final judgment.
Section 13. Ambiguities.
Each Party and its counsel have participated fully in the review and revision of this
Agreement. Any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in interpreting this Agreement.
Section 14. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together will constitute one instrument.
Section 15. Authority.
The persons executing this Agreement on behalf of the Parties warrant that: (i)
such Party is duly organized and existing; (ii) they are duly authorized to execute and
deliver this Agreement on behalf of said Party; (iii) by so executing this Agreement, such
Party is formally bound to the provisions of this Agreement; and (iv) the entering into of
this Agreement does not violate any provision of any other agreement to which said Party
is bound.
[signatures on next page]
IN WITNESS THEREOF, the Parties have caused this Agreement to be executed
on the date first written above.
A f�
dor—iia Harper, eity%,
APPROVED AS TO F
Richards, Watson & 0
Steele, City Attorney
DEVELOPER
LAMPSON PARK PLACE, LLC,
a California limited liability company
By
Name:
Its: 1M Q.nt e, -
CITY OF SEAL BEACH
ALR/ Ingram, City Manager