HomeMy WebLinkAbout4972 Warner Avenue Owner LP - 2024-05-01 (2) REIMBURSEMENT- PLANNING- AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND
4972 WARNER AVENUE OWNER LP
FOR COSTS INCURRED FOR
PREPARATION OF ENVIRONMENTAL IMPACT REPORT FOR
HUNTINGTON BEACH SENIOR LIVING PROJECT
THIS AGREEMENT("Agreement")is made and entered into by and between the City of
Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as
"CITY," and 4972 WARNER AVENUE OWNER LP , a Delaware Limited Liability Company
hereinafter referred to as "DEVELOPER."
WHEREAS, DEVELOPER is proposing to develop an area within the City of Huntington
Beach known as Huntington Beach Senior Living Project; and
DEVELOPER is required to submit applications to CITY for approval of various
discretionary matters, such as entitlements, zone changes, land use approvals and environmental
assessments; and
DEVELOPER desires that all entitlements, zone changes, land use approvals and
environmental assessments be processed as soon as possible; and
DEVELOPER desires to have CITY commit sufficient resources to enable the expeditious
processing of applications and other necessary documentation; and
Pursuant to California Government Code Section 87103.6, DEVELOPER is allowed to
defray the cost of processing development applications and entitlements by reimbursing CITY for
such costs,
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and
exchanged,the parties agree as follows:
1. PAYMENT
DEVELOPER agrees to reimburse CITY for its professional services as follows:
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A. Within ten (10) days following execution of this Agreement by CITY,
DEVELOPER will make an initial payment to CITY in the amount of Forty Nine Thousand Seven
Hundred Ninety-Two Dollars ($49,792.00) (hereinafter the "Amount of Deposit"). Thereafter, on
the first day of each third month, DEVELOPER shall replenish the Amount of Deposit by paying to
CITY an amount equal to the amount paid by CITY for professional services funded by this
Agreement (the "Quarterly Payment"). The parties acknowledge that the Amount of Deposit will be
used to pay the professional planning services funded by this Agreement, and if, prior to the
payment of any Quarterly Payment, the Amount of Deposit is less than One Thousand Dollars
($1,000), DEVELOPER shall make the next Quarterly Payment within ten (10) days' notice from
CITY. DEVELOPER acknowledges that the amount referenced in this Agreement is the CITY's
best estimate of the costs for the services described herein, and that the actual cost of said services
may be higher. In the event that the actual cost of said services exceeds the estimated costs,
DEVELOPER agrees to pay the actual cost within ten (10) days after receiving CITY's invoice for
same. In the event the actual costs of Reimbursement Services are less than the estimated costs,
CITY will refund the difference between the actual and estimated costs.
B. The estimated cost to cover twelve (12) months of professional services is
Ninety Thousand Five Hundred Thirty Dollars ($90,530.00).
C. A late payment fee of ten percent (10%) will be assessed if CITY receives
any payment later than the thirtieth (30`i') day after that payment is due but unpaid. In
addition, one and one-half percent (1%) interest per month shall be added for each month the
payment hereunder is due but unpaid.
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2. STATEMENT OF INTENT
The amounts reimbursed to CITY pursuant to this Agreement will help defray
CITY's cost of the professional planning services required to process DEVELOPER's various
development applications and entitlements as set forth herein.
3. EXCLUSIVE CONTROL BY CITY
CITY will maintain exclusive control over the work described herein. Nothing in
this Agreement:
A. Shall be deemed to require CITY to approve any plan, proposal, suggestion,
application or request submitted by DEVELOPER.
B. Shall be deemed to limit, in any respect whatsoever, CITY's sole authority to
direct and control the planner(s) assigned to DEVELOPER's various development projects.
C. Shall be deemed to impose any liability on CITY different from any liability
as may otherwise be established by law.
4. CITY EMPLOYEES AND OFFICIALS
DEVELOPER shall employ no CITY official nor any regular CITY employee in the
work performed pursuant to this Agreement. No officer or employee of CITY shall have any direct
financial interest in this Agreement.
5. TIME IS OF THE ESSENCE
CITY agrees that time is of the essence for the performance of the work to be funded
pursuant to this Agreement and therefore, thirty (30) days prior to each quarterly invoice,
DEVELOPER shall submit a list of proposed activities to be performed by the CITY for approval
by the Planning Director.
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6. TERMINATION OF AGREEMENT
Either party may terminate this Agreement at any time with or without cause, upon
ten (10) days' prior written notice to the other party. DEVELOPER shall be responsible for all
costs incurred prior to termination, including any and all costs incurred after notice of termination
has been given.
7. TERM
This Agreement shall be effective on the date of its approval by all parties. This
Agreement shall expire when terminated as provided herein.
8. NOTICES
Any notices, certificates, or other communications hereunder shall be given either by
personal delivery to DEVELOPER's agent or to CITY as the situation shall warrant, or by enclosing
the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal
Service, to the addresses specified below; provided that CITY and DEVELOPER, by notice given
hereunder, may designate different addresses to which subsequent notices, certificates or other
communications will be sent:
TO CITY: TO DEVELOPER:
City of Huntington Beach 4972 Warner Avenue Owner LP
ATTN: Jennifer Villasenor Attn: Tom Lawless
2000 Main Street 4000 MacArthur Blvd., Suite 280
Huntington Beach, CA 92648 Newport Beach, CA 92660
9. MODIFICATION,
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duly executed by both parties.
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10. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases
at the beginning of the various sections in this Agreement are merely descriptive and are included
solely for convenience of reference only and are not representative of matters included or excluded
from such provisions, and do not interpret, define, limit or describe, or construe the intent of the
parties or affect the construction or interpretation of any provision of this Agreement.
11. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining
covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent
upon any other unless so expressly provided here. As used in this Agreement, the masculine or
neuter gender and singular or plural number shall be deemed to include the other whenever the
context so indicates or requires. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict between any provision
contained herein and any present or future statute, law, ordinance or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, and the provision of this
Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
12. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared
and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
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•
date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed
an original instrument as against any party who has signed it.
13. IMMIGRATION
DEVELOPER shall be responsible for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply with the provisions of the
United States Code regarding employment verification.
14. LEGAL SERVICES SUBCONTRACTING PROHIBITED
DEVELOPER and CITY agree that CITY is not liable for payment of any
subcontractor work involving legal services, and that such legal services are expressly outside the
scope of services contemplated hereunder. DEVELOPER understands that pursuant to Huntington
Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and
CITY shall not be liable for payment of any legal services expenses incurred by DEVELOPER.
15. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the
terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear
its own attorney's fees.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the
State of California.
17. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respective parties to each of the terms of this Agreement,
and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority
or power is not, in fact,held by the signatory or is withdrawn.
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18. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between the
parties respecting the subject matter of this Agreement and supersedes all prior understanding and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on M 19r ,20 L .
DEVELOPER,
CITY OF HUNTINGTON BEACH, a
4972 WARNER AVENUE ER LP municipal corporation of the State of
California
By. l_
'i oM Lawb&Ss City Manager
print name
ITS: (circle one)Chairman/Pre •• ' - '
MAttilelv114t71,114,L1*./
AND
INITIATED AND APPROVED:
By:
1201c*. r• $r.4t;L Director of Community Development
print name
ITS: (circle one) Secretary/Chief Financial
Officer/Asst.Secretary— •
AssocYot‘T� RECEIVE AND FILE:
COUNTERPART City Clerk
APPROVED AS TO FORM:
City Attorney
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18. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between the
parties respecting the subject matter of this Agreement and supersedes all prior understanding and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on t , 20
DEVELOPER,
CITY OF HUNTINGTON BEACH, a
4972 WARNER AVENUE OWNER LP municipal corpor ' oft tate of
Califoi •
By:
City Manager
print name
ITS: (circle one)Chairman/President/Vice President
AND
INITIATE AND PPROVED:
By:
Dire to of Community Development
print name
ITS: (circle one) Secretary/Chief Financial
Officer/Asst.Secretary—Treasurer
RECEIVE AND FILE:
COUNTERPART �/441414.44)
Ci y Clerk 5/3521-1
APPROVED AS RM:
• ity Attorney
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