The URL can be used to link to this page

Home My WebLink AboutAGMT - Bay City Partners AGREEMENT FOR REIMBURSEMENT OF COSTS TO PREPARE ENVIRONMENTAL ANALYSIS, FISCAL ANALYSIS STUDY AND STAFF REPORTS FOR THE BAY CITY PARTNERS PROJECT THIS AGREEMENT ( "Agreement ") is made this 9th day of August 2010, by and between the City of Seal Beach ( "City ") and Bay City Partners ( "Owner "). RECITALS A. Owner owns vacant land located westerly of First Street and northerly of the First Street parking Lot in the City, more particularly shown on Exhibit "A" attached hereto ( "Property "). The Property is governed by the DWP Specific Plan, which currently allows visitor serving hotel and open space uses, and is located within the Project Area of the Redevelopment Plan and the California Coastal Zone. Owner has applied to develop the Property ( "Project "). B. The Project will require an environmental analysis ( "Environmental Analysis ") pursuant to the California Environmental Quality Act ( "CEQA "), Public Resources Code Section 21000, et seq. The City will engage the services of an independent consultant ( "CEQA Consultant ") to conduct the environmental review under City's direction at Owner's expense. C. Owner has represented that it has engaged the services of an independent consultant to prepare a hotel feasibility study ( "Hotel Study "), and has agreed to provide such study to the City. D. To facilitate City's discretionary review of Owner's development application including but not limited to reviewing the Hotel Study, City requires that a fiscal impact analysis (hereinafter "FIA ") be prepared for the Project by a fiscal consultant ( "Fiscal Consultant ") under City's direction at Owner's expense. The CEQA Consultant and Fiscal Consultants may be referred to collectively as "Consultants." E. Owner also acknowledges that work on the Project Application, or Environmental Analysis shall be immediately suspended if either: (i) Owner fails to make any payments in the manner required by this Agreement; or (ii) Owner notifies City of the abandonment of the Project Application as provided for herein. NOW, THEREFORE, in consideration of such recitals, and the mutual promises, obligations and covenants herein contained, the Parties hereto agree as follows: 1. City and Bay City accept the above recitals as true and correct and incorporate them herein as if they were fully restated in this Agreement. DS - Staff Report - BCP - Reimbursement Agreement (attachment - 1216425 -2) Bay City Reimbursement Agreement with City ofSeal Beach re: DWP site, August 9, 2010 2. Owner shall reimburse City in full for all documented costs and expenses actually incurred by City: (a) in the preparation of the Environmental Analysis and FIA, including but not limited to Consultants' fees and expenses; and (b) in the processing of the Project, including all time spent by City staff and legal staff to process and review all necessary land use entitlements, the Environmental Analysis and the FIA. Collectively, such costs, fees, charges and expenses shall be referred to herein as "Reimbursable Costs." 3. Owner shall reimburse City for: (a) All documented costs and expenses actually incurred pursuant to the agreements between City and the Consultants, substantially in the form of the agreements attached hereto as "Exhibit B" and "Exhibit C." Once executed, the executed Consultants' contracts will replace the draft agreement as "Exhibit B" and "Exhibit C;" (b) All City personnel (full -time and part-time positions) staff costs, at an administrative fee equal to 17.5% of the total amount paid by the City to the Consultants; and (c) All legal fees and expenses incurred by the City at the rates specified in the City's agreement for legal services. The City Attorney's current rates for 2010 are set forth in Exhibit "D." These rates may be adjusted in 2011 and the City will provide such updated information when informed of said adjustment by City Attorney. 4. Owner shall pay City according to the following schedule: (a) Upon execution of this Agreement, Owner shall deposit with City the sum of one hundred fifty thousand dollars ($150,000.00). City shall maintain such deposit in a separate account ( "Project Deposit Account "). City shall deduct from such Project Deposit Account, until the Project Deposit Account is exhausted, the documented Reimbursable Costs. All interest earned on the Project Deposit Account, if any, shall accrue to the benefit of, and be used for, completion of the processing of the Project. City shall promptly remit to Owner any balance due at the completion of the City's processing and review of the Project. (b) On or before the fifteenth day of any month, City shall submit to Owner a statement of expenses and reconciliation of deposit account for the preceding month's costs of reimbursable services and expenses. City may carry over to the next month's invoice any charges not billed in a particular month. (c) Owner shall replenish the deposit account throughout the project when a minimum balance of $50,000.00 is reached. Owner shall replenish the account by a minimum amount of $50,000.00, which replenishment amount may be increased to a greater amount at the determination of the Director of Development Services based on anticipated billings for Reimbursable Costs, and shall pay within 20 2 DS - Staff Report - BCP - Reimbursement Agreement (attachment - 1216425 -2) Bay City Keimbursement Agreement with City ofSeal Beach re: DWP site, August 9, 2010 days of receipt the amount set forth in the monthly statement of expenses and reconciliation of deposit account. (d) Owner acknowledges that City's and the Consultants' work on the Project Application, or Environmental Analysis shall be immediately suspended, after 5 days notice thereof to Owner, if at anytime Owner fails to make a supplemental deposit as directed by the Director of Development Services. (e) City shall remit to Owner any balance remaining in the Project Deposit Account within 30 days after the date on which: (i) The Project has been finally processed by City; or (ii) Owner gives notice of abandonment of the Project in accordance with this Agreement, whichever occurs first. (f) Notwithstanding the foregoing, Owner and its representatives shall have the right, upon reasonable notice to City, to audit and copy City's records regarding any matter for which City requests reimbursement or payment from Owner. 5. Owner hereby acknowledges that the execution of this Agreement prior to retention of the Consultants by City is necessary to accommodate expeditious processing of Owner's development application and, on that basis, Owner hereby waives any defense to the enforcement of this Agreement which may be based upon or arise out of the lack of a pre- existing agreement by and between City and the Consultants. City and Owner shall proceed promptly with approval of this Agreement, and each party shall reserve the right to object to the Exhibits to this agreement or completion of Section 3 below for a period of 10 days after delivery to each party. 6. Owner also acknowledges that work on the Project Application, or Environmental Analysis shall be immediately suspended if at any time Owner's payment is delinquent, or if Owner notifies City of the abandonment of the Project Application as provided for herein. 7. It is not the intent of this Agreement to have Owner pay to City any amounts in excess of those costs actually incurred by City for work actually performed in connection with Project Application. 8. Nothing in this Agreement shall be construed to abrogate or waive the City's or the Owner's attorney client privileges. 9. In the event Owner notifies the City in writing of its intent to abandon the Project, Owner shall reimburse City for all Reimbursable Costs incurred based on work performed prior to the notice of abandonment. 10. This Agreement is deemed to have been prepared by all of the parties hereto, and any uncertainty or ambiguity herein shall not be interpreted against the drafter, 3 DS - Staff Report - 13C1' - Reimbursement Agreement (attachment - 1216425 -2) Bay City Reimbursement Agreement with City ofSeal Beach re: DWP site, August 9, 2010 but rather, if such ambiguity or uncertainty exists, shall be interpreted according to applicable rules of interpretation of contracts under the law of the State of California. 11. This Agreement shall not be assignable by Owner in whole or in part without the prior written consent of City, which written consent shall not be unreasonably withheld. Owner shall provide to City 30 days' advanced notice of any such assignment. 12. Any notice required to be given to Owner shall be deemed duly given upon delivery, if sent to Owner and Owner's legal representative, postage prepaid to: Bay City Partners 627 Bayside Drive Newport Beach, CA 92660 or personally delivered to Owner at such address or other address specified to City in writing by Owner. Any notice required to be given to City shall be deemed duly given upon delivery, if sent to City postage prepaid to: Director of Development Services City of Seal Beach 211 8th Street Seal Beach, California 90740 or personally delivered to City at such address or other address specified to Owner in writing by City. 13. This Agreement represents the entire integrated agreement between City and Owner, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both City and Owner. 14. Should any dispute under this Agreement lead to litigation, the prevailing party shall be entitled to recover from the other party actual attorneys' fees and costs for the prosecution of the action. 15. This Agreement shall be governed by, and interpreted according to the laws of the State of California. 16. The persons signing this Agreement warrant that each of them has the authority to execute this Agreement on behalf of the party on whose behalf said person is purporting to execute this Agreement, and that this Agreement is a binding obligation of said parties. 4 DS - Staff Report - BCP - Reimbursement Agreement (attachment - 1216425 -2) • - Bay City tceimbursement Agreement with City ofSeal Beach re: DWP site, August 9, 2010 EXECUTED in the day and year first above written. "City" CITY OF SEAL BEACH By: DAVID CARM Y CITY MANAGER ATTEST: 4tA . CITY LERK APPROVED AS TO FORM: & ITY ATTORNEY "Owner" Bay City Partners, LLC By: i1 c , \\ ) i' .4); WARD D. SELICH, PROJECT MANAGER 5 DS - Staff Report - BCP - Reimbursement Agreement (attachment - 1216425 -2)