HomeMy WebLinkAboutAGMT - Century National Properties • to /vg "iv 3
ORIGINAL
• AGREEMENT FOR REIMBURSEMENT OF CITY AND CONSULTANT
•
COSTS TO PREPARE ENVIRONMENTAL ANALYSIS FOR
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- THE VILLAGE AT ROSSMOOR CENTER, SEAL BEACH
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THIS AGREEMENT is made this Z 2 ' day of bee.et"-.41r _ 2003, by
and between the City of Seal Beach (hereinafter "CITY") and Century National Properties, Inc.
(hereinafter "OWNER ").
RECITALS
A. OWNER owns that 39.5 acre property alternatively known as Rossmoor Business
Center or Rossmoor Center located at the Northwest corner of St. Cloud Drive and Seal Beach
Boulevard. (the "Property "), and proposes to redevelop_approximately 6.15 acres located at the
Northwest comer of Rossmoor Center Way and Seal Beach Boulevard, Aka: Project Area B to
be known as the "Village at Rossmoor Center" (the "Property ").
B. OWNER proposes the approval of a tentative parcel map and the demolition, •
replacement and associated construction of portions of the Property (the "Project "). OWNER
intends to submit to CITY an application for demolition of existing structures, construction of new
structures, approval of a parcel map and other necessary approvals for the development of the
Village at Rossmoor Center (the "Project Application ").
C. The Parties agree that the Project Application shall receive an Environmental
Analysis pursuant to the California Environmental Quality Act ( "CEQA," Public Resources Code
Sec. 21000, et seq.). The Parties desire that CITY hire an environmental consultant (the
- "Consultant ") at OWNER's expense to prepare the CEQA- required Environmental Analysis for the
Project.
D. It is expressly understood that the obligations of CITY and OWNER hereunder are
limited to the work to be performed pursuant to the scopes of services approved for the processing
of the Project Application. The Parties hereto understand and agree that approval of the Project
Application will not complete the processing of the Project to the point where construction may
begin. To the extent that there remains additional CITY work to be done on the Project, CITY and
OWNER or OWNER's designee may enter into a new agreement at that time.
E. OWNER will reimburse CITY in full for all costs and expenses actually incurred by
CITY in the preparation of the Environmental Analysis for the Project in the manner provided for
herein. In doing so; OWNER does not waive any rights or claims regarding excess payments or
charges to which OWNER may be subjected as a result of CITY's payment of such costs.
OWNER further agrees that in the manner provided for herein it will reimburse CITY in full for all
costs and expenses actually incurred by CITY in the processing of the Project Application.
Z: \My Documents \Rossmoor Center Expansion \Area B Rcconstruction\rinal Reimbursement Aereement.DOC \LW \12 -12 -03 -
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003
F. OWNER acknowledges that the execution of this Agreement prior to CITY's
retention of the Consultants is necessary to accommodate expeditious processing of the Project
Application. 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.
G. 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 in the retention and compensation of the
Consultant for the Consultant work actually performed pursuant to the applicable approved scope
of services for the processing of the Project Application, and the Environmental Analysis for the
Project Application.
COVENANTS
1. 11 . I ' 11' 1 • 1 . 1 ' 1s• .
CITY shall retain a CITY - selected consultant experienced in the preparation of
Environmental Analyses pursuant to CEQA ("Environmental Consultant ") for the purposes of
preparing the necessary Environmental Analysis of the Project. The scope of work, work schedule,
and estimated budget for the completion of required Environmental Analysis necessary to allow the
CITY and other responsible agencies to evaluate the Project Application in accordance with the
provisions of the Code of the City of Seal Beach, the California Enviromnental Quality Act
(CEQA), and the Government Code of the State of California, and other appropriate State and
Federal laws and regulations relating to traffic and circulation, noise, aesthetics, and other
significant areas of concern shall be prepared by Environmental Consultants and provided to
OWNER as provided in this Agreement. The OWNER has previously authorized the initiation of
the environmental review and provided the CITY a deposit check in the amount of $20,000 to
begin the environmental review process.
2. CITY To Provide Consultant Agreement And Other Documents To OWNER,
CITY shall provide to OWNER a copy of any and all agreements between CITY
and the Consultant at least fifteen (15) days prior to its execution so that they may be reviewed by
OWNER to assure compliance with the terms of this Agreement. The OWNER has previously
authorized the initiation of the environmental review and provided the CITY a deposit check in the
amount of $20,000 to begin the environmental review process. Upon its execution, CITY shall
provide to OWNER a copy of any and all agreements between CITY and the Consultant. Once
executed, the agreement between CITY and the Consultant shall be attached to this Agreement as
Exhibit " A ". Upon their completion, CITY shall provide to OWNER, at no additional cost, any
and all public reports, findings, studies or other documents prepared by the Consultant pursuant to
the applicable scopes of services.
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Final Reimbursement Agreement
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Rossmoor Center Reimbursement Agreement with
City gfSeal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003
3. Reimbursement.
A. The parties agree hereto that the established CITY application fee for
processing a tentative parcel map shall be deducted from the initial City Deposit amount, as defined
. below.
B. OWNER agrees to reimburse CITY in full for all documented costs and
expenses actually incurred by CITY and paid by CITY to the Consultants in accordance with the
procedures provided herein for performance of the scope(s) of work attached hereto as Exhibit "A,"
for the preparation of any legally required Environmental Analysis for the Project, and for
processing the Project Application (the "Reimbursable Consultant Costs "). OWNER also agrees to
reimburse CITY in full for all documented costs and expenses actually incurred by CITY personnel
(full -time and part-time positions) in processing the Project Application (including, without
limitation, legal fees and expenses charged CITY by its City Attorney at the hourly rates City
Attorney charges City for preparation and review of documents related to development proposals),
and incurred in managing the agreements with the Consultant (the "Reimbursable Staff Costs ").
The City Attorney's current rates for 2003 are set forth in Exhibit `B ". These rates may be adjusted
in 2004 and the City will provide such updated information when informed of said adjustment by
• City Attorney.
C. OWNER agrees to reimburse CITY according to the following schedule:
(1) REIMBURSEMENT FOR STAFF COSTS. Upon the later of
execution of this Agreement or the submission of the Project Application, OWNER shall deposit
with CITY the sum of Ten Thousand Dollars ($10,000) (the "CITY Deposit Amount "), which
CITY shall place in an interest bearing account (the "CITY Deposit Account"). CITY shall deduct
from such CITY Deposit Amount, until the CITY Deposit Amount is exhausted, the documented
Reimbursable Staff Costs. All interest earned on the CITY Deposit Amount, if any, shall accrue
• to the benefit of, and be used for, completion of the scopes of services attached hereto as Exhibit
"A." CITY may, in lieu of deposit of the CITY Deposit Amount into a separate bank account,
separately account for such deposit in one or more of its various bank accounts, and upon doing
so, shall proportionately distribute to the account(s) into which the CITY Deposit Amount
resides, the average interest earned during the period on the CITY Deposit Amount. CITY shall
monthly send to OWNER an accounting of amounts and reasons the CITY Deposit Amount has
been used over the preceding month, including a description of who worked on the project, for
how long, and their hourly rate, and an accounting of the interest earned and the accounts into
which the earned interest has been deposited.
(2) REIMBURSEMENT FOR CONSULTANT COSTS. OWNER has
deposited Twenty thousand Dollars ($20,000) ( "Consultant Deposit Amount ") into an interest
bearing deposit account (the "Consultant Deposit Account "). CITY shall provide to OWNER a
copy of the Consultants' monthly invoices within ten (10) days of receipt of the same. OWNER
shall have ten (10) days within which to protest any charge on the invoice. If such a protest is
made, City shall work with OWNER to resolve the protest prior to making payment to the
Final Reimbursement Agreement .
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003
applicable consultant. If payment is nonetheless made by CITY to Consultant over OWNER's
protest, OWNER will be deemed not to have waived any and all rights in law or equity to obtain
repayment and/or damages from the appropriate parties.
(3) SUBMISSION OF DOCUMENTATION. All invoices
submitted by CITY to OWNER, and by the Consultant to CITY, shall include: reasonably
detailed descriptions of the work perfonned and by whom; those persons hourly rates, the
amount of time spent on each individual task of the work performed; and a copy of the paid
receipt for any claimed reimbursable expense for the billing period.
(4) REPLENISHMENT OF CITY OR CONSULTANT DEPOSIT
ACCOUNT On or before the fifteenth day of any month, CITY shall submit to OWNER a
statement of expenses and reconciliation of CITY and/or CONSULTANT 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. OWNER shall replenish the deposit
account throughout the Project Application when a minimum balance of $2,000.00 is reached in the
CITY Deposit Account and when a minimum balance of $5,000.00 is reached in the Consultant
Deposit Account ( "Supplemental Deposit "). OWNER shall replenish the CITY and/or
CONSULTANT Deposit Account by an amount determined by the Director of Development
Services to cover the anticipated billings for Reimbursable Consultant Costs and Reimbursable
Staff Costs for a period not to exceed the ensuing sixty (60) days. Such Supplemental Deposit shall
be made within twenty (20) days of receipt of the written request for Supplemental Deposit. Any
request for a Supplemental Deposit shall include an explanation of the work completed to date and
the anticipated cost of the work remaining to be performed. OWNER agrees that CITY's and the
Consultants' work on the Project Application, or Environmental Analysis shall be immediately
suspended if at any time OWNER fails to make a Supplemental .Deposit in the time periods
provided for in this Agreement.
Any Supplemental Deposit amount shall be governed by the same, terms of trust governing the
original deposit. CITY shall remit to OWNER any balance remaining in the CITY Deposit
Account or the Consultant Deposit Account within thirty (30) days after the date on which: (i) the
Consultants have completed their respective tasks and the Project Application has been finally
processed by CITY; or (ii) OWNER gives notice of abandonment of the Project in accordance with
this Agreement, whichever occurs first.
4. Cost Estimate. OWNER acknowledges and agrees that CITY has informed
OWNER that CITY'S preliminary estimate of costs to be reimbursed by OWNER will be
approximately $65,000.00. Such cost estimate was derived as follows:
(1) Environmental Consultant fees and expenses: $ 50,000.00
(2) CITY's staff costs and expenses: $ 10,000.00
(3) CITY's legal fees and expenses: - $ 5,000.00
Final Reimbursement Agreement 4 -
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs -Area B
December, 2003
Such estimates are estimates only, and represent a reasonable approximation based
upon CITY's past experience and standard hourly rates. The estimate in any or all categories may
be exceeded or reduced based upon the ultimate scope of work necessary to adequately process the
Project Application. CITY shall use its best efforts to maintain project costs within the estimated
amount; however, in no event shall the cost estimate be construed as a limitation or maximum
figure of OWNER's ultimate cost reimbursement responsibility. At such time as the actual costs in
any 'category itemized above equal or exceed eighty percent (80 %) of the estimated amount, CITY
shall notify OWNER of that fact in writing to allow OWNER to plan accordingly. OWNER
acknowledges and agrees that the amount of CITY's costs to be reimbursed by OWNER pursuant
to this Agreement are not negotiable to the extent that they are actually incurred by CITY in paying
for performance of the scope(s) of work attached hereto as Exhibit "A" for the preparation of the
Environmental Analysis for the Project, and for processing the Project Application. At OWNER's
request, regular bi- weekly monthly meetings will be held by CITY and OWNER to discuss
process, progress, budget and other items pertaining to the Project.
5. Abandonment of the Projec In the event OWNER notifies CITY's City
Manager in writing of its intent to abandon the Project, CITY will immediately notify the
Consultants, in writing both by mail and by facsimile transmittal, to immediately terminate their
performance of work under agreement(s) with CITY. OWNER shall reimburse CITY for all
services of the Consultants and. CITY staff personnel (including CITY's City Attorney) who had
performed prior to the notice of abandonment.
6. Independent Consultants.
(a) During the existence of CITY'S agreements with the Consultants, and for a
time period of one (1) year from the final resolution of the Project Application, neither OWNER,
nor any of its representatives, agents, or other persons acting in concert with OWNER will enter
into any financial or business relationship with any of the Consultants or propose to enter into any
future such relationship with any of the Consultants.
(b) OWNER hereby acknowledges and agrees as follows:
(i) CITY has sole discretion to select which of its employees are
assigned to work on the Project Application; '
(ii) CITY has sole discretion to determine which persons CITY will hire
as employees and contractors to work on the scope of work attached hereto as Exhibit "A" for the
preparation of the Environmental Analysis for the Project;
(iii) CITY has sole discretion to direct the work and evaluate the
performance of such employees and contractor and CITY retains the right to terminate or replace at
any time any such employee or contractor.
Final Reimbursement Agreement 5
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003
(iv) CITY has sole discretion, within reason, to determine the amount of
compensation paid to employees or contractor hired by CITY to work on the scope of work
attached hereto as Exhibit "A" for the preparation of the Environmental Analysis for the Project.
Advanced notice of any changes in compensation, including without limitation, changes in hourly
compensation for CITY Staff, CONSULTANT or its staff shall be provided to OWNER at least 15
days prior to such changes taking effect. Failure to so notify OWNER shall constitute a waiver on
the part of CITY and CONSULTANT to reimbursement from or payment from OWNER of the
increased compensation.
(v) CITY, not OWNER, shall pay CITY employees and Consultant
hired or assigned by CITY to work on the scope of work attached hereto as Exhibit "A" for the
preparation of the Environmental Analysis for the Project.
(c) CITY and OWNER hereby acknowledge and agree that processing of the
Project Application is not contingent on the hiring of any specific contractor.
(d) CITY and OWNER hereby acknowledge and agree that OWNER's duty to
reimburse CITY is not contingent upon CITY's approval or disapproval of the Project Application
or upon the result of any action of CITY.
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7. Interpretation. 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, 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..
8. Insurance Requirements. CITY shall require the Consultants that it hires to
provide to CITY proof of policies of insurance that meet or exceed the following:.
Commercial General Liability Insurance including Business Automobile
Insurance coverage in the amount of Two Million Dollars ($2,000,000.00),
combined single limit applied separately to each project away from premises
owned or rented by Consultant, which names CITY and OWNER, as well as the
officers and employees of each as an Additional Insured, and which is primary to
any policy which CITY and /or OWNER may otherwise carry ( "Primary •
Coverage "), and which treats the employees of CITY and OWNER in the same
manner as members of the general public ( "Cross- liability Coverage ").
Errors and omissions insurance in an amount agreed upon between CITY and
OWNER which names CITY and OWNER, as well as the officers and employees
of CITY as an Additional Insured, and which is primary to any policy which
CITY and OWNER may otherwise carry ( "Primary Coverage "), unless errors and
omissions coverage is included in the General Liability policy.
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Final Reimbursement Agreement 6 - -
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Rossmoor Center Reimbursement Agreement with - -
- Cite of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003 '
The policies of insurance required under this Agreement may not be canceled without at least -
thirty (30) days prior written notice to CITY and OWNER. In order to demonstrate the
Additional Insured Coverage, Primary Coverage and Cross - liability Coverage required under the
• Consultant's Commercial General Liability Insurance Policy, the Consultant shall deliver a
policy endorsement to CITY and OWNER demonstrating same prior to commencement of
services required under this Agreement.
9. Duty To Hold CITY and OWNER Harmless. CITY shall require that each of
the Consultants defend, indemnify, protect and hold harmless CITY, its elected and appointed
officers, employees and agents and OWNER and its officers, employees and agents from and
against all claims for damages, liability, cost and expense (including without limitation
attorneys' fees) arising out of the conduct of the Consultant, or any of its officers, agents,
employees, or subcontractors, in connection with the execution of the work covered by this
Agreement, regardless of whether and to what extent it is alleged that the claim results from
contributory negligence of CITY or OWNER - , excepting therefrom those claims arising from the
sole negligence or sole willful misconduct of CITY, its officers, or employees or OWNER or its
officers, employees and agents. The Consultant's indemnification shall include any and all costs,
expenses, attorneys' fees and liability incurred by CITY and/or OWNER, their officers, agents,
or employees in defending against such claims, whether the same proceed to judgment or not.
Further, the Consultant at its own expense shall, upon written request by CITY and /or OWNER
and /officers, employees and agents, defend any such suit or action brought against CITY, its
officers, agents, or OWNER or its employees officers, employees and agents. The Consultant's
indemnification of CITY and OWNER shall not be limited by any prior or subsequent •
declaration by the Consultant.
10. Assignment. 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 thirty (30) days advanced notice of any such assignment.
11. Notice. 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:
Century National Properties, Inc.
Attn: J. Brian Gibbons, Vice President
12501 Seal Beach Boulevard, Suite 200
Seal Beach, CA 90740
and to:
Rutan and Tucker • -
Attn: Jeffrey A. Goldfarb - •
611 Anton Blvd. Ste 1400
Costa Mesa CA 92626 •
Final ,Reimbursement Agreement - 7 . - ,
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- - Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003
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, CA 90740
or personally delivered to CITY at such address or other address specified to OWNER in writing by
CITY.
12. Entire Agreement. 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.
13. Litigation Costs. 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.
14. Governing Law. This Agreement shall be governed by, and interpreted
according to the laws of the State of California.
15. Authority. 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.
Final Reimbursement Agreement 8 -
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re. Consultant Team and Staff Support Costs — Area B
'December, 2003
EXECUTED in the day and year first above written.
"CITY" CITY OF ' • : EA '
BY _,�
JO :.: AHORSKI
MANAGER
ATT T: ,
Ale Ae,
o r CITY CLERK
APPROVED AS TO FORM
CV)=° ,/ . 1 2 414
CITY ATTORNEY
"OWNER" CENTURY NATIONAL P • ' ° ,
By lk1� !�
, 11�: an Gibbons
Its: Vice President
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Final Reimbursement Agreement - 9
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December; 2003
EXHIBIT "A"
SCOPE OF WORK - PREPARATION OF THE
ENVIRONMENTAL ANALYSIS FOR THE
"VILLAGE AT ROSSMOOR CENTER" PROJECT
(Note: To be provided upon receipt from Culbertson, Adams & Associates)
Final Reimbursement Agreement 10
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Staff Support Costs — Area B
December, 2003
EXHIBIT "B"
CITY ATTORNEY CURRENT BILLING RATES
Final Reimbursement Agreement 11
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CHARDS, WATSON & GERSHON
2003 STANDARD BILLING RATES
HOURLY RATE
SHAREHOLDERS:
ABBOTT $360
ADLER $360
ASAMURA $285
BARROW $360
BOGA $260
BOND $260
BROWNE $360
CECCON $325
COLESON $285
DIAZ $260
DORSEY $360
ENNIS $325
ESTRADA $325
GANS $400
GRAYSON $360
HARRIS, J. $360
HARRIS, R. $325
JIMBO $360
KAUFMANN $360
KIM $285
KUNERT $360
LYNCH $360
MARKMAN $375
ORR $285
PIEPER $360
PIERCE $285
RUDELL $360
STEELE $285
STEPANICICH $360
STRAUSZ $360
SUME $285
THORSON $360
WIENER $325
Manage doc #719867 9/10/2003 1
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'CHARDS, WATSON & GERSHO!
2003 STANDARD BILLING RATES
HOURLY RATE
SR. ATTORNEYS
CLARKE $235
CURLEY $275
DANNER $250
FOX $275
GALLOWAY $325
GREY5ON $325
GROSS $235
HAKMAN $235
KA RPIAK $235
KRAMER $360
LAMKEN $360
PITTMAN $235
WEAVER $350
YO5HIBA $235
iManage doc #719867 9/10/2003 2
CHARDS, WATSON & GERSHON
2003 STANDARD BILLING RATES
HOURLY RATE
ASSOCIATES
ABBE $200
A HN $200
ALDERETE $220
BOBKO $200
CHUANG $200
COX $200
COYNE $200
GARCIA $200
GUTIERREZ -BAEZA $200
HO -URANO $220
JANDIAL $185
KHALSA $175
KIM, PETER $200
MCCARTHY $175
MCGINLEY $220
RAMIREZ $200
REINSTEIN $200
SNOW $185
SPENCER $220
SULLIVAN $200
TURNBULL $200
WATSON, R. $200
Nonage doc #719867 9/10/2003 3
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CHARDS, WATSON & GERSHON
2003 STANDARD BILLING RATES
HOURLY RATE
LAW CLERKS $140
SUMMER CLERKS $130
5R. PARALEGALS:
LIBERTY $150
PARALEGALS:
KRANE $125
iManage doc #719867 9/10/2003 4
1110 Ke/imti.nt OtRIllllhJ]AL
AGREEMENT FOR REIMBURSEMENT OF CITY AND CONSULTANT
COSTS TO PREPARE ENVIRONMENTAL ANALYSIS AND PROCESS
PROJECT APPLICATION FOR
ROSSMOOR CENTER, SEAL BEACH
THIS AGREEMENT is made this �0 clay of 2001, by
and between the City of Seal Beach (hereinafter "CITY ") and Century National Properties, Inc.
(hereinafter "OWNER ").
RECITALS
A. OWNER owns that 39.5 acre property alternatively known as Rossmoor Business
Center or Rossmoor Center located at the Northwest corner of St. Cloud Drive and Seal Beach
Boulevard (the "Property ").
B. OWNER proposes the demolition, replacement and associated construction of
portions of Rossmoor Center on the Property (the "Project "). OWNER intends to submit to CITY
an application for a height variance for the Project (the "Project Application ").
C. The Parties agree that the Project Application shall receive an Environmental
Analysis pursuant to the California Environmental Quality Act ( "CEQA," Public Resources Code
Sec. 21000, et seq.). The Parties desire that CITY hire an environmental consultant (the
"Environmental Consultant ") at OWNER's expense to prepare the CEQA- required Environmental
Analysis for the Project.
D. OWNER desires the Project Application to be expeditiously processed through
CITY's review process. OWNER desires CITY to retain at OWNER's expense an experienced and
qualified planning donsultant (the "Planning Consultant," and, together with the Environmental
Consultant collectively referred to as the "Consultants ") who will function as the primary CITY
stall processing agent Ibr the Project Application and whose sole function vis -a -vis CITY is the
processing of the Project Application.
261/021196 -0001
242184.01 al2/10/01
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Rossmoor Center Reimbursement Agreement with
City ofSeal Beach re: Consultant Team and Sta /fSupport Costs.
December, 200/
I;. It is expressly understood that the obligations of CITY. and ,OWNER hereunder arc
limited to the work to be perfurmcd pursuant to the scopes of services approved for the processing
of the Project Application. The Parties hereto understand and agree that approval of the Project.
Application will not complete the processing of the Project to the point where construction may
begin. To the extent that there remains additional CITY work to be done on the Project, CITY and
OWNER or OWNER's designee may enter into a new agreement at that time.
F. OWNER will reimburse CITY in full for all costs and expenses actually incurred by
CITY in the preparation of the Environmental Analysis for the Project in the manner provided for
herein. In doing so, OWNER does not waive any rights or claims regarding excess payments or
charges to which OWNER may be subjected as a result of CITY's payment of such costs. OWNER
further agrees that in the manner provided for herein it will reimburse CITY in full for all costs and
expenses actually incurred by CITY in the processing of the Project Application.
G. OWNER acknowledges that the execution of this Agreement prior to CCI'Y's
retention of the Consultants is necessary to accommodate expeditious processing of the Project
Application. 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.
H. 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 in the retention and compensation of the
Consultants for the Consultants' work actually performed pursuant to the applicable approved
scope of services for the processing of the Project Application, and the Environmental Analysis for
the Project Application.
• COVENANTS
1. Consultants Scope of Work for Project.
A. CITY shall retain a CITY - selected consultant experienced in the preparation
of environmental analyses pursuant to CEQA ( "Environmental Consultant ") for the purposes of
261/021196 -0001
242184.01 al2/10/01 2
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Rossmoor Center Reimbursement Agreement with
City of Seal Beach re: Consultant Team and Stc ff Support Costs
December, 2001
preparing the necessary Environmental Analysis of the Project. The scope of work, work schedule,
and estimated budget for tIte completion of required Environmental Analysis necessary to allow the
CI"I'Y and other responsible agencies to evaluate the Project Application in accordance with the
provisions of the Code of the City of Seal Reach, the California Environmental Quality Act
(CEQA), and the Government Code of the State of California, and other appropriate State and
Federal laws and regulations relating to traffic and circulation, noise, aesthetics, and other
significant areas of concern shall be prepared by Environmental Consultants.
B. CITY shall hire a CITY - selected Planning Consultant experienced and
qualified in processing similar commercial projects through CITY's review procedures. The
Planning Consultant shall act as the CITY Planning Department staff person for the Project
Application and shall expeditiously process the Project Application through CITY's review
procedures. In this regard, the Planning Consultant shall be the primary CiTY representative who
will be made available to and will in fact meet with OWNER or OWNER's representative on all
issues associated with processing of the Project Application. The scope of services for the
agreement between CITY and the Planning Consultant shall, at a minimum specify that the
Planning Consultant shall: meet with OWNER or OWNER's representative within 48 hours of a
request by OWNER to do so except in cases where there exists extenuating circumstances;
represent CITY in all meetings with OWNER or OWNER's representative in the same capacity and
with the same authority as would a full time employee of CITY's Plarming Department.
2. . •i I I A , • _ 0 • • 1 1 i • '', •
CITY shall provide to OWNER a copy of any and all agreements between CITY and the
• Consultants at least 10 days prior to their execution so that they may be reviewed by OWNER to
assure compliance with the terms of this Agreement. Upon confirming the acceptability of such
agreements, OWNER shall so indicate by written notice to CITY. Upon their execution, CITY
shall provide to OWNER a copy of any and all agreements between CITY and the Consultants.
Once executed, the agreements between Cfl'Y and the Consultants' shall be attached to this
Agreement as Exhibit "B." Upon their completion, CITY shall provide to OWNER any and all
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public reports, findings, studies or other documents prepared by the Consultants pursuant to the
applicable scopes of services.
3. Reimbursement
A. The parties agree hereto that the established CITY application fee for
processing a height variation shall be deducted from the initial City Deposit amount, as defined
below.
B. OWNER agrees to reimburse CITY in full for all documented costs and
expenses actually incurred by CITY and paid by CITY to the Consultants in accordance with the
procedures provided herein for performance of the scope(s) of work attached hereto as Exhibit "A"
for the preparation of any legally required Environmental Analysis for the Project and for
processing the Project Application (the "Reimbursable Consultant Costs "). OWNER also agrees to
reimburse C1'TY in full for all documented costs and expenses actually incurred by CITY personnel
(full -time and part -time positions) in processing the Project Application (including, without
limitation, legal fees charged CITY by its City Attorney), and incurred in managing the agreements
with the Consultants (the "Reimbursable Staff Costs ").
C. OWNER agrees to reimburse CITY according to the following schedule:
(1) REIMBURSEMENT FOR STAFF COSTS. Upon the later of
execution of this Agreement or the submission of the Project Application, OWNER shall deposit
with CITY the sum of Ten Thousand Dollars ($10,000) (the "CITY Deposit Amount "), which
CITY shall place in an interest bearing account (the "CITY Deposit Account "). CITY shall deduct
from such deposit, until the deposit is exhausted, the documented Reimbursable Staff Costs. All
interest earned on the CITY Deposit Amount, if any, shall accrue to the benefit of, and be used
for, completion of the scopes of services attached hereto as Exhibit "A." CITY may, in lieu of
deposit into a separate bank account, separately account for such deposit in one or more of its
various bank accounts, and upon doing so, shall proportionately distribute to the account(s) into
which the CITY Deposit Amount resides, the average interest earned during the period on the
CITY Deposit Amount. CITY shall monthly send to OWNER an accounting of amounts and
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December, 200/
reasons the CITY Deposit Amount has been used over the preceding month, and an accounting of
the interest earned and the accounts into which the earned interest has been deposited.
(2) REIMBURSEMENT FOR CONSULTANT COSTS. Upon the
later of the execution of agreements with the Consultants and OWNER's receipt of such
agreements, or the submission of the Project Application, OWNER shall deposit 25% of the
Consultants' total estimated costs and expenses ( "Consultant Deposit Amount ") into an interest
bearing deposit account (the "Consultant Deposit Account "). CITY shall provide to OWNER a
copy of the Consultants' monthly invoices within ten (10) days of receipt of the same. OWNER
shall have ten (10) days within which to protest any charge on the invoice. If such a protest is
made, City shall work with OWNER to resolve the protest prior to making payment to the
applicable consultant. If payment is nonetheless made by CITY to Consultant over OWNER's
protest, OWNER will be deemed not to have waived any and all rights in law or equity to obtain
repayment and /or damages from the appropriate parties.
(3) SUBMISSION OF DOCUMENTATION. All invoices
submitted by CITY to OWNER, and by the Consultants to CITY, shall include: reasonably
detailed descriptions of the work performed and by whom; the amount of time spent on each
individual task of the work performed; and a copy of the paid receipt for any claimed
reimbursable expense for the billing period.
(4) REPLENISHMENT OF CITY OR CONSULTANT DEPOSIT
ACCOUNT On or before the fifteenth day of any month, CITY shall submit to OWNER a
statement of expenses and reconciliation of CITY and /or CONSULTANT 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. OWNER shall replenish the deposit
account throughout the Project Application when a minimum balance of $2,000.00 is reached.
OWNER shall replenish the CITY and /or CONSULTANT Deposit Account by an amount
determined by the Director of Development Services to cover the anticipated billings for
Reimbursable Consultant Costs and Reimbursable Staff Costs. Such supplemental deposit shall be
made within twenty (20) days of receipt of the written request for supplemental deposit. Any
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Rossnroor Center Reimbursement Agreement with
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December, 2001
request for a supplemental deposit shall include an explanation of the work completed to date and
the anticipated cost of the work remaining to be perlornled. OWNS R agrees that CI'I'Y's and the
Consultants work on the Project Application, or Environmental Analysis shall he immediately
suspended if at any time OWNER fails to make a supplemental deposit as directed by the Director
of Development Services.
The supplemental deposit amount shall be governed by the same terms of trust governing the
original deposit. CITY shall remit to OWNER any balance remaining in the CITY Deposit
Account or the Consultant Deposit Account within thirty (30) days after, whichever is applicable,
the date on which: (i) the Consultants have completed their respective tasks and the Project
Application has been finally processed by CITY; or (ii) OWNER gives notice of abandonment of
the Project in accordance with this Agreement.
4. Cost Estimate,. OWNER acknowledges and agrees that CITY has informed
OWNER that CITY's preliminary estimate of costs to be reimbursed by OWNER will be
approximately $34,700.00. Such cost estimate was derived as follows:
(1) Environmental Consultant fees and expenses: $ $21,200.00
(2) Planning Consultant fees and expenses $ $7,500.00
(3) CITY's staff costs and expenses: $ $3,000.00
(4) CITY's legal fees and expenses: $ 3,000.00
Such estimates are estimates only, and represent a reasonable approximation based
upon C[TY's past experience and standard hourly rates. The estimate in any or all categories may
be exceeded or reduced based upon the ultimate scope of work necessary to adequately process the
Project Application. CITY shall use its best efforts to maintain project costs within the estimated
amount; however, in no event shall the cost estimate be construed as a limitation or nlaximllnl
figure of OWNER's ultimate cost reimbursement responsibility. At such time as the actual costs
incurred by CITY in any category itemized above equal or exceed eighty percent (80 %) of the
estimated amount, CITY shall notify OWNER of that fact in writing to allow OWNER to plan
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Rossmoor Center Reimbursement Agreement with
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December, 2001
accordingly. OWNER acknowledges and agrees that the amount of CITY's costs to be reimbursed
by OWNER pursuant to this Agreement arc not negotiable to the extent that they arc actually
incurred by CITY in paying for perlormancc of the scope(s) of work attached hereto as Exhi bit "A"
for the preparation of the Environmental Analysis for the Project, and for processing thc Project
Application. At OWNER's request, regular bi- weekly monthly meetings will be held by CITY and
OWNER to discuss process, progress, budget and other items pertaining to the Project.
5. Abandonment of the Project. In the event OWNER notifies CITY's City Manager
in writing of its intent to abandon the Project, C1TY will immediately notify the Consultants, in
writing both by mail and by facsimile transmittal, to terminate their performance of work under
agreement(s) with CITY. OWNER shall reimburse CITY for all services of the Consultants and
CITY staff personnel (including CITY's City Attorney) who had performed prior to the termination
of agreements between CITY and the Consultants.
6. Independent Consultants
(a) During the existence of CITY's agreements with the Consultants, and for a
time period of one (1) year from the final resolution of the Project Application, neither OWNER,
nor any of its representatives, agents, or other persons acting in concert with OWNER will enter
into any financial or business relationship with any of the Consultants or propose to enter into any
future such relationship with any of the Consultants.
(b) OWNER hereby acknowledges and agrees as follows:
(i) CITY has sole discretion to select which of its employees are
assigned to work on the Project Application;
• (ii) CITY has sole discretion to determine which persons CITY will hire
as employees and contractors to work on the scope(s) of work attached hereto as Exhibit "A" for
the preparation of thc Environmental Analysis for the Project, and for processing the Project
Application;
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Rossmoor Center Reimbursement Agreement with
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December, 2001
(iii) CITY has sole discretion to direct the work and evaluate the
performance of such employees and contractors and CITY retains the right to terminate or replace
at any time any such employee or contractor.
(iv) CITY has sole discretion, within reason, to determine the amount of
compensation paid to employees or contractors hired by CITY to work on the scope(s) of work
attached hereto as Exhibit "A" for the preparation of the Environmental Analysis for the Project,
and for processing the Project Application.
(v) CITY, not OWNER, shall pay employees and Consultants hired or
assigned by CITY to work on the scope(s) of work attached hereto as Exhibit "A" for the
preparation of the Environmental Analysis for the Project, and for processing the Project
Application.
(c) CITY and OWNER hereby acknowledge and agree that processing of the
Project Application is not contingent on the hiring of any specific contractor[s].
(d) CI'T'Y and OWNER hereby acknowledge and agree that OWNER's duty to
reimburse CITY is not contingent upon CITY's approval or disapproval of the Project Application
or upon the result of any action of CITY.
(e) Neither OWNER nor its officers, employees or agents, shall communicate
with Environmental Consultant during the term of this Agreement, unless specifically authorized to
do so in advance by CITY's Director of Development Services. The parties recognize that
communication between OWNER and Consultants is a necessary element in the Consultants proper
performance of the scope(s) of work attached hereto as Exhibit "A. ", Accordingly, the above
referenced authorization shall not be unreasonably withheld.
7. Intrrpretation. This Agreement is deemed to have been prepared by all of '
the parties hereto, and any unccrlainty or ambiguity herein shall not be interpreted against the
drafter, 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.
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Rossmoor Center Reimbursement Agreement with
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December, 2001
8. Insurance Requirements. CITY shall require the Consultants that it hires to
provide. to CI'T'Y proof of policies of insurance that elect or exceed the following:
Commercial General Liability Insurance including Business Automobile
Insurance coverage in the amount of Two Million Dollars ($2,000,000.00),
combined single limit applied separately to each project away from premises
owned or rented by Consultant, which names CITY and OWNER , as well as the
officers and employees of each as an Additional Insured, and which is primary to
any policy which CITY may otherwise carry ( "Primary Coverage "), and which
treats the employees of CITY and OWNER in the same manner as members of the
general public ( "Cross - liability Coverage ").
Errors and omissions insurance in an amount agreed upon between CITY and
OWNER which names CITY and OWNER, as well as the officers and employees
of CITY as an Additional Insured, and which is primary to any policy which CITY
and OWNER may otherwise carry ( "Primary Coverage "), unless errors and
omissions coverage is included in the General Liability policy.
The policies of insurance required under this Agreement may not be canceled without at least
thirty (30) days prior written notice to CITY and OWNER. In order to demonstrate the
Additional hnsured Coverage, Primary Coverage and Cross - liability Coverage required under the
Consultant's Commercial General Liability Insurance Policy, the Consultant shall deliver a
policy endorsement to CITY and OWNER demonstrating same prior to commencement of
services required -under this Agreement.
9. Duty To Hold CITY and OWNER 1Iarniless. CITY shall require that each of
the Consultants defend, indemnify, protect and hold harmless CITY, its elected and appointed
officers, employees and agents and OWNER and its officers, employees and agents from and
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Rossmoor Center Reimbursement Agreement with
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December, 2001
against all claims for damages, liability, cost and expense (including without limitation
attorneys' lees) arising out of the conduct of the Consultant, or any of its officers, agents,
employees, or subcontractors, in connection with the execution of the work covered by this
Agreement, regardless of' whether and to what extent it is alleged that the claim results from
contributory negligence of CITY or OWNER , excepting therefrom those claims arising from
the sole negligence or sole willful misconduct of CITY, its officers, or employees or OWNER
or its officers, employees and agents. The Consultant's indemnification shall include any and
all costs, expenses, attorneys' fees and liability incurred by CITY, its officers, agents, or
employees in defending against such claims, whether the same proceed to judgment or not.
Further, the Consultant at its own expense shall, upon written request by CITY and /officers,
employees and agents , defend any such suit or action brought against CITY, its officers,
agents, or OWNER or its employees oflicers, employees and agents . The Consultant's
indemnification of CITY and OWNER shall not be limited by any prior or subsequent
declaration by the Consultant.
10. Assivment. 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 thirty (30) days advanced notice of any such assignment.
11. Notice. 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:
Century National Properties, Inc.
• Attn: J. Brian Gibbons, Vice President
12501 Seal Beach Boulevard, Suite 270
Scal Beach, CA 90740
and to:
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December, 200/
Rutan and Tucker
Attn:.Icflrey A. Goldfarb
611 Anton Blvd. Ste 1400
Costa Mesa CA 92626
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 Scal Beach
211 8th Street
Seal Beach, CA 90740
or personally delivered to CITY at such address or other address specified to OWNER in writing by
CITY.
12. Entire Agreement. 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.
13. l.itip, ilion Cosh. Should any dispute under this Agreement lead to litigation, the
prevailing party shall be entitled to recover from the other party reasonable attorneys' fees and costs
for the prosecution of the action.
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Rossmoor Center Reimbursement Agreement with
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December, 2001
14. Governing Law. This Agreement shall be governed by, and interpreted
according to the laws of the State of California.
15. Authority. 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.
•
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EX E C:UTED in the day and year first above written.
"CITY" CITY OF • L : i CH
By l
N B. BAHORSKI
Y MANAGER
ATTE _ T:
i
Al ,i.� _ '� -0-1
r 0
CITY CLERK
APPROVED AS TO FORM
CITY ATTORNEY
"OWNER" CENTURY NATIONAL PROPERTIES, INC.
By ,�_ S' c _._.._____________
• B rian Gibbons
Its: Vice President
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DEC -12 -2001 16:28 FROM TO 15624939857# P.02/02
• 11)
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Routnoar Center Reimbursement Agreement with
a y ofSeal Beacli re.' Consultant Team and Sid - Support Ca
December, 200/
EX L'CU'I'l:D in the day and year first above written.
"CITY" CITY OF SEAL BEACH •
By
JOHN B. BAHORSKI
CITY MANAGER
ATTEST:
CITY CLERK
APPROVED AS TO FORM
‘ 2 1 1, (5
CITY ATTORNEY
"OWNER" CENTURY NATIONAL PROPERTIES, INC.
e-
. : rian Gibbons
Its: Vice President
2611021 1960001
242124.01 a12I10,01 13
TOTAL P.15
TOTAL P.02
DEC -12 -2001 16:23 96% P.02