York Point View Properties LLC - FY2022-013REIMBURSEMENT AGREEMENT
BY AND BETWEEN
CITY OF RANCHO PALOS VERDES
AND
YORK POINT VIEW PROPERTIES, LLC
THIS REIMBURSEMENT AGREEMENT (Agreement) is executed this )/Zo day of
S~~.Q~ , 2021 (Effective Date), by and between the CITY OF RANCHO PALOS VERDES, a
genet'al law city and municipal corporation (City), and YORK POINT VIEW PROPERTIES,
LLC, a California limited liability corporation (Developer). City and Developer may be referred
to, individually or collectively, as "Party" or "Parties."
RECITALS
A. Developer has submitted an application for approval from City for Vesting
Tentative Tract Map No. 53166 (the Application) for the development of 6001 Palos Verdes Drive
South, commonly known as the Point View Property (the Project).
B. City has entered into a professional services agreement with Ecotierra Consulting,
Inc. (Consultant) for environmental consulting services on the Project.
C. Developer has agreed to reimburse City for the full costs incurred by the City
related to the City's retention of Consultant, to conduct the environmental review of the Project as
required by the California Environmental Quality Act (CEQA), including the preparation of, and
any revisions to, the environmental documents, and all other related costs, fees, and expenses,
including but not limited to attorneys' fees.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
TERMS
1. Incorporation of Recitals. The Parties hereby incorporate the foregoing Recitals
as though fully set forth herein.
2. Developer's Responsibility for City Costs. The following reimbursement
obligations shall be collectively referred to as City Costs.
(a) Developer shall reimburse City for the full costs incurred for the City's
retention of Ecotierra Consulting, Inc., to conduct an environmental review of the Project, as
required by CEQA, including costs ofreviewing and processing all entitlement applications, costs
of preparing all agreements related to the Project, all consultant fees, the preparation of, and any
revisions to, the environmental documents, and all other related costs, fees, and expenses,
including but not limited to attorneys' fees.
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(b) To that end, Developer shall, within five (5) business days of the Effective
Date, deposit with City an initial sum of $150,235.00 (One Hundred Fifty Thousand Two
Hundred Thirty Five Dollars) which the City will use to pay Consultant pursuant to the
professional services agreement with Consultant for environmental consulting services on the
Project. Of this deposit, $5,000 (Five Thousand Dollars) will be used to cover the cost of
preparation of this Agreement and the Consultant agreement.
( c) In the event that the agreement with Consultant must be increased to provide
for additional services, Developer shall provide additional deposits to cover any additional costs.
( d) Developer shall, in addition to the amount in Section 2(b ), within six ( 6)
months of the Effective Date, deposit with City deposit an additional $150,000 (One Hundred
Fifty Thousand Dollars) which the City will use to pay Consultant pursuant to the professional
services agreement with Consultant for environmental consulting services on the Project.
2.1 Additional Deposits by Developer. Developer shall not unreasonably
withhold reimbursement necessary to reimburse City for the City Costs. City's notice requesting
additional deposits necessary to reimburse City for the City Costs shall state what costs have been
incurred to date, additional costs anticipated, and how City intends to apply any needed additional
Developer deposits. If deposited sums exceed the costs incurred by City, City shall refund the
difference as soon as City determines the amount of such excess.
2.2 Compliance with City Costs Reimbursement & Deposit Provisions. In
the event that Developer does not promptly reimburse the City Costs as provided in this Section
2, or does not timely deposit or replenish the Deposits necessary to reimburse City for the City
Costs incurred by City which arise from or are related to the Project, City may immediately halt
Consultant's work on the Project, and may take such further action as City deems appropriate,
including deeming any Developer application(s) abandoned until such time as Developer has made
such payments as required by this Agreement..
2.3 Interest on Deposit. Any amounts deposited by Developer shall be
maintained by City in an interest-bearing account of City's choice, and may be co-mingled with
other City funds in such account. Interest accruing upon any such deposit shall inure to and be
created for the benefit of City.
2.4 Accounting. City shall keep an accounting of the City Costs and all deposits
made by Developer. Upon written request, City shall provide statements of these accounts to
Developer, which shall include descriptions of the City Costs, including, the date, amount, and the
type of activity for which the cost was incurred. Failure of City to provide any accounting shall
not excuse Developer's duty to perform any act, including the duty to make full and timely deposits
required under this Section 2. Developer may question or challenge any use of funds set forth in
the accounting and may appeal same to the City Council.
3. Additional Taxes, Fee, and Charges. Notwithstanding any provision to the
contrary, Developer shall pay all normal and customary fees and charges applicable to all permits
necessary for the Project, and any taxes, fees, and charges hereafter imposed by City in connection
with the Project which are standard and uniformly-applied to similar projects in the City.
4. City Release; Termination. This Agreement shall terminate three (3) years after
the Effective Date unless Developer has outstanding reimbursement obligations to the City at such
time or City reasonably determines that City will incur additional reimbursable costs after such
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date, in which event this Agreement will be automatically extended for additional one (1) year
terms until Developer has reimbursed all City Costs. City will provide Developer with written
notice that its reimbursement obligations have been satisfied.
5. Remedies. In the event of a breach by Developer, City may, in addition to any other
remedies, seek to recover the City Costs plus reasonable attorneys' fees in enforcing this
Agreement. This provision will not be interpreted to curtail any of City's remedies at law or equity
against Developer for any violation of its codes, nor· shall it be interpreted as a waiver of any
defense of Developer.
6. Conflicts of Interest.
6.1 No Financial Relationship. Developer acknowledges the requirements of
Government Code§§ 1090 et seq. (the "1090 Laws") and warrants that it has not entered into any
financial or transactional relationships or arrangements that would violate the 1090 Laws, nor shall
Developer solicit, participate in, or facilitate a violation of the 1090 Laws.
6.2 Developer's Representations & Warranties. Developer represents and
warrants that for the 12-month period preceding the Effective Date 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 (Government Code§§ 87100 et seq.).
7. Developer Acknowledgements. Subject to the reimbursement obligations set forth
in this Agreement, Developer acknowledges and agrees that, with respect to the Entitlements:
7 .1 City has sole discretion to select which of its employees and contractors are
assigned to work on the Entitlements.
7 .2 City has sole discretion to direct the work and evaluate the performance of
the employees and contractors assigned to work on the Entitlements, and City retains the right to
terminate or replace at any time any such person.
7 .3 City has sole discretion to determine the amount of compensation paid to
employees or contractors assigned to work on the Entitlements.
7.4 City, not Developer, shall pay employees and contractors assigned to work
on the Entitlements from a City account.
8. Indemnification and Hold Harmless.
8.1 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 performance of this Agreement and/or approval of the Entitlements and/or
implementation of the Project. City shall have no liability under this Agreement for the inability
of Developer to obtain Entitlements and/or implementation of the Project as the result of a
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judicial determination that some or all of the Entitlements are invalid or inadequate or not in
compliance with law.
8.2 Indemnification. Developer agrees to defend, indemnify and hold
harmless the City, its elected or appointed officials, agents, officers, employees, and attorneys from
any claims, demands, causes or causes of action, damages, or proceedings against the City or its
elected or appointed officials, agents, officers, employees, or attorneys arising out of or related to
this Agreement, the Project, the Entitlements, and any other agreements or entitlements or permits
anticipated under the implementation of the Project (the "Claims or Demands"), whether such
activities are undertaken by Developer or by any of its agents, contractors, or subcontractors, or
by any one or more persons directly or indirectly employed by or acting as agent for Developer or
any of its agents, contractors, or subcontractors. The City will promptly notify Developer of any
such claim, action, or proceeding against the City, and Developer will pay the City's associated
legal costs and will advance funds assessed by the City to pay for defense of the matter by the City
Attorney. The City will cooperate fully in the defense. Notwithstanding the foregoing, the City
retains the right to settle or abandon the matter without Developer's consent, but should it do so,
the City shall waive the indemnification herein, except the City's decision to settle or abandon a
matter following an adverse judgment or failure to appeal shall not cause a waiver of the
indemnification rights herein. Developer shall provide a deposit in the amount of 100% of the
City's estimate, in its sole and absolute discretion, of the cost of litigation, including the cost of
any award of attorney's fees, and shall make additional deposits as requested by the City to keep
the deposit at such level. The City may ask for further security in the form of a deed of trust to
land of equivalent value. If Developer fails to provide or maintain the deposit, the City may
abandon the action and Developer shall pay all costs resulting therefrom and the City shall have
no liability to Developer.
8.3 City Right to Abandon. If Developer fails to timely pay the agreed-upon
deposit or to replenish the deposit, City may also abandon any litigation without liability to
Developer and may recover from Developer any attorneys' fees and other costs for which the City
may be liable as a result of abandonment of any of the Claims or Demands. Under such
circumstances also the City shall have the right to revoke any or all Entitlements and deny the
Project approved for or granted to Developer.
8.4 City Discretion. It is expressly agreed that City shall have the right to
utilize the City Attorney's office or use other legal counsel of its choosing in responding to or
defending the Claims or Demands. Developer's obligation to pay the defense costs of City shall
extend until final judgment, including any appeals, unless this Agreement is otherwise terminated
by Developer as described above. The City agrees to fully cooperate with Developer in the defense
of any matter in which Developer is defending and/or holding City harmless. The City may make
all reasonable decisions with respect to its representation in any legal proceeding relating to any
Claims or Demands, including its inherent right to abandon or to settle any litigation brought
against the City in its reasonable discretion.
8.5 Exception. The obligations of Developer under this Section 7 shall not
apply to any claims, actions, or proceedings arising out of the gross negligence or willful
misconduct of the City, its elected or appointed officials, agents, officers, employees, or
attorneys.
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8.6 Survival of Indemnity & Hold Harmless Obligations. All indemnity
and hold harmless provisions set forth in this Agreement shall survive termination of this
Agreement, and shall remain in effect for a period of five (5) years from and after the approval of
all the Entitlements.
9. Assignment. Developer may not assign this Agreement to any other entity unless
agreed to in writing by City and upon proof of the financial viability of the successor entity to
fulfill the Agreement's obligations. City's consent to assignment shall not be unreasonably
withheld.
10. Relationship Between the Parties. The Parties agree that this Agreement does not
operate to create the relationship of partnership, joint venture, or agency between City and
Developer. Nothing herein shall be deemed to make Developer an agent of City.
11. Authority to Enter Agreement. Developer warrants that it has the legal capacity
to enter into this Agreement. Each Party warrants that the individuals who have signed this
Agreement have the legal power, right, and authority to make this Agreement and bind each
respective Party.
12. Notices. All notices, demands, invoices, and communications shall be in writing
and delivered to the following addresses or such other addresses as the Parties may designate by
written notice:
To City:
Copy to:
To Developer:
Copy to:
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City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, California 90275
Attn: Ken Rukavina, Community Development Director
Aleshire & Wynder, LLP
18881 Von Karman Ave. Suite 1700
Irvine, CA 92612
Fax: 949-223-1180
Attn: William Wynder, City Attorney
York Point View Properties, LLC
2 Horseshoe Lane
Rolling Hills Estates CA 90274
Attn: James York
York Point View Properties, LLC
Po Box2649
Palos Verdes Peninsula CA 90274
Cox, Castle & Nicholson
50 California St. Suite No. 3200
San Francisco, CA 94111
Fax No. (415) 262-5162
Attn: Scott Birkey
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Depending upon the method of transmittal, notice shall be deemed received as follows: by
facsimile, as of the date and time sent; by messenger, as of the date delivered; by U.S. Mail first
class postage prepaid, as of72 hours after deposit in the U.S. Mail; and by email, upon the sender's
receipt of an email from the recipient acknowledging receipt.
13. Cooperation; Further Acts. The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes of this Agreement.
14. Construction; References; Captions. It being agreed the Parties or their agents
have participated in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Unless
otherwise specified, any term referencing time, days, or period for performance shall be deemed
calendar days and not business days, provided, however that any deadline that falls on a weekend
or holiday shall be extended to the next City business day. All references to Developer include all
personnel, employees, agents, and contractors of Developer, except as otherwise specified in this
Agreement. All references to City include its elected officials, appointed boards and commissions,
officers, employees, agents, and volunteers. The captions of the various paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the scope,
content, or intent of this Agreement.
15. Amendment; Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
16. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any contractual right
by custom, estoppel, or otherwise.
17. Binding Effect. Each and all of the covenants and conditions shall be binding on
and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or
assigns. This section shall not be construed as an authorization for any Party to assign any right or
obligation.
18. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
19. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
20. Consent to Jurisdiction and Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of California. Any legal action or
proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the
Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the
appropriate California State Court in the County of Los Angeles, California. Each Party waives
the benefit of any provision of state or federal law providing for a change of venue to any other
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court or jurisdiction including, without limitation, a change of venue based on the fact that a
governmental entity is a party to the action or proceeding, or that a federal right or question is
involved or alleged to be involved in the action or proceeding. Without limiting the generality of
the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to
California Code of Civil Procedure section 394.
21. Time is of the Essence. Time is of the essence with respect to this Agreement.
22. Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original and which collectively shall constitute one instrument.
23. Entire Agreement. This Agreement contains the entire agreement between the
Parties and supersedes any prior oral or written statements or agreements between the Parties with
respect to the subject matter of this Agreement.
[SIGNATURES OF PARTIES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date
DEVELOPER:
YO ri P• P. T V PROPERTIES, LLC
By VC0c
Its n9.5/iJ4
CITY:
CITY OF RANCHO PALOS VERDES
_ Xasir
By O-
Its Maier
ATTEST
By • =
Its CTr C�
APPROVED AS TO FORM:
By W
William W Wyn er, City Attorney
Two corporate officer signatures required when Consultant is a corporation,with one signature required from
each of the following groups 1)Chairman of the Board,President or any Vice President;and 2)Secretary,any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer CONSULTANT'S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document
STATE OF CALIFORNIA
„‘It
COUNTY OFLrQS ANGELES ed,re{`l I
On 5tplCMbir r,2021 before me,lkE"tt't Se$091? p�nally appeared v wo-er ` ork- ,proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscnbed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct
o HENRY JOSEPH PATTERSON
We h d d official seal Notary Public California
` � Dffi ` ommissLos Angelesioos
County
22771
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Comm Expires Feb 10-2023
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER Qv.e4CXr'5Eu✓ -+ M I r."4"4"1"4—
TITLE OR TYPE OF DOCINT
TITLE(S)
❑ PARTNER(S) 0 LIMITED
❑ GENERAL NUMBER OF PAGES
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S) S eie ?rj240st
❑ GUARDIAN/CONSERVATOR DATE OF DOCUMENT
❑ OTHER
SIGNER(S)OTHER THAN NAMED ABOVE
SIGNER IS REPRESENTING
(NAME OF PERSON(S)OR ENTITY(IES))
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01203 0018/735594 4 ANAVAIIALWY