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HomeMy WebLinkAbout55G - RESO LAND USE APP AND PROJREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 20, 2019 TITLE: ADOPT REIMBURSEMENT AGREEMENT RESOLUTION FOR LAND USE APPLICATIONS AND PROJECTS (STRATEGIC PLAN NO. 3, 5A) CITY MA'NAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt the proposed Resolution authorizing the City Manager to execute deposit/reimbursement agreements with applicants and developers who propose land use and project applications, requiring the City to engage third -party experts who are necessary to assist with CEQA, traffic, legal or economic analysis in conjunction with processing applications through various stages. DISCUSSION The City of Santa Ana's Planning and Building Department processes numerous land use applications requiring the City to engage subject -matter experts in a variety of areas of expertise. City staff often requires an advance deposit from the applicant to cover City expenses incurred in engaging various experts who assist with CEQA, traffic, legal or economic analysis in conjunction with processing applications through various stages. The City may also require an applicant, through the imposition of conditions of approval, to defend and indemnify the City in the event of a challenge to a project approved by the City Planning Commission or City Council. A formal deposit/reimbursement agreement is an enforceable legal instrument the City can use to ensure it is reimbursed for expenses rather than having the burden of the expenses fall upon the City and its General Fund. Costs and expenses to be reimbursed generally include, but are not limited to: (i) consulting services (if necessary) for the processing of any environmental review; (ii) reimbursement of extraordinary staff time and any administrative costs (i.e. drafting applications and staff reports, attendance at meetings, pre -planning work related to Project, etc.) related to the planning, review and processing of the project where such exceed the costs reflected in ordinary application fees; (iii) costs for legal services provided by staff or outside counsel; and (iv) other costs associated with a particular project. 55G-1 Adopt Resolution Concerning Reimbursement Agreements for Land Use Applications August 20, 2019 Page 2 In addition, on occasion the City's approval of a project is challenged in court. Often the challenge is in the form of a writ of mandate. The City is the named defendant in these cases and the developer is what is known as a real party in interest (RPI). As the defendant the City must engage legal counsel to represent the City and it is the City that incurs costs. A reimbursement agreement will ensure the City receives timely deposits and is reimbursed for the costs resulting from approval of the application. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #5 (Leverage private investment that results in tax base expansion and job creation citywide), Strategy A (Identify and market underutilized properties for new development that will create new jobs and expand the City's tax base). FISCAL IMPACT There is no immediate fiscal impact to the City in adopting the proposed Resolution, in the future certain applicants will be required to post a deposit with the City to cover consultant, legal and planning costs associated with development projects where the City anticipates incurring significant expenses. Minh Thai Executive Director Planning and Building Agency APPROVED AS TO FUNDS AND ACCOUNTS: 6� h Kathryn Downs, CPA Executive Director Finance and Management Services Agency Exhibits: 1. Resolution Reimbursement Agreements 2. Reimbursement Agreement Template 55G-2 EXHIBIT 7 RESOLUTION NO.2019-xx RESOLUTION OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER TO EXECUTE DEPOSIT/REIMBURSEMENT AGREEMENTS FOR PROFESSIONAL SERVICES RELATED TO DEVELOPMENT PROJECTS WHEREAS, from time -to -time Applicants propose the development of real property in the City (the Project) and the processing of the applications require the City to retain the necessary expertise to prepare required environmental documentation, traffic analysis, or legal analysis, as an example: and WHEREAS, as a condition to the City's processing of the Project review process, the Applicant has agreed to reimburse the City for the Consultants' reasonable costs and expenses related to the City's review process for the Project in the manner set forth in a Reimbursement Agreement; and WHEREAS, the Applicant's reimbursement of Consultant costs and expenses under this ensure that the City has the necessary resources to diligently and efficiently process the Project; and WHEREAS, the City has entered into Deposit/Reimbursement Agreements in the past and has fully recovered expenses. NOW, THEREFORE, the City Council of the City ofSanta Ana does hereby resolve as follows: SECTION 1. The City Manager is hereby authorized to execute Deposit/Reimbursement Agreements in substantially the same form as those entered into in the past on behalf of the City, subject to any clarifying or conforming changes approved by the City Attorney. SECTION 2. The Clerk of the Council shall certify to the passage and adoption of this resolution and enter it into the book of original Resolutions. SECTION 3. This Resolution shall take effect immediately upon its adoption. SECTION 4. The Mayor shall sign this Resolution, and the City Clerk shall attest and certify to the passage and adoption thereof. PASSED, APPROVED, AND ADOPTED this _ day of 2019. Miguel A. Pulido Mayor 55G-3 APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: C ' Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2019-xx to be the original resolution adopted by the City Council of the City of Santa Ana on 2019. Date: Clerk of the Council City of Santa Ana 55G-4 REIMBURSEMENT AND INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SANTA ANA AND FOR THE PAYMENT OF FEES AND COSTS RELATED TO CONTRACT ENVIRONMENTAL, LEGAL AND ENGINEERING SERVICES FOR THE DEVELOPMENT LOCATED AT IN SANTA ANA RELATED TO ENVIRONMENTAL DOCUMENTATION This Agreement ("Agreement") is entered into as of , by and between the CITY OF SANTA ANA, a charter city and municipal corporation, organized and existing under the Constitution and laws of the State of California ("City"), and , ("Developer'), who agree as follows: 1. Recitals. This Agreement is made with reference to the following facts and circumstances: Developer is seeking entitlement to certain real property consisting of a located at , in the City of Santa Ana ("Property") (APN # B. Developer has filed applications to develop the Property with a project and street improvements (the "Project"), including approximately units, and square feet of commercial space and parking spaces. The discretionary applications may consist of a General Plan Amendment (GPA), Amendment Application (AA), Zoning Ordinance Amendment (ZOA), Variances, Site Plan Review, Conditional Use Permit, and Vesting Tentative Map. C. City does not have personnel with sufficient expertise to prepare or review the Environmental Document and related studies, reports and analyses for the project. In order for City to process the Project, City is in need of contracting with an environmental consultant. In addition to the environmental consultant, processing the Project will also require work to be performed by the City Attorney's Office and the City Engineer. The work to be performed by such persons and firms in processing the Project is collectively referred to herein as the "Services." D. City believes it is in the public interest for Developer to pay for such Services. E. Developer desires to move forward with the processing of its Project subject to the reimbursement obligations set forth herein. 2. Agreement to Pay for Services. Developer agrees to pay for all professional costs and expenses related to the Services as provided for in this Agreement, even though the actual amounts may be 1 55G-5 different than the proposal for the environmental consultant as listed in Section 3, and the amount of costs for the City Attorney's Office and City Engineer have not been estimated. 3. Environmental Consultant City Attorney, and Contract Engineer Services. A. For the purpose of conducting the environmental analysis, the Environmental Consultant and their subcontractors will prepare technical analysis of: Air Quality and Greenhouse Gas Emissions, Traffic Impact Analysis, Phase 1 Site Assessment, Native American Coordination, Noise Study, and any other studies deemed necessary by the Environmental Consultant to properly conduct the environmental analysis. B. For the purpose of conducting the environmental analysis, the Developer has submitted a Conceptual Site Plan, Landscape Plan, Grading Plan, and Building Elevations/Renderings, Preliminary Water Quality Management Plan and Hydrology Report/Study ( ) Sewer/Water Study ( ). C. For the purpose of providing environmental and technical services, the City has received a Proposal to Provide Environmental and Technical Services from in the estimated amount of ($ .00) Dollars. The Scope of Services is attached herewith as Exhibit A, and the Cost Estimate is attached herewith as Exhibit B. Both Exhibits are incorporated herein by this reference. A 10% administrative overhead will be charged to developer for oversight of the Agreement. The City shall make the determination as to what type of Environmental Document is required after reviewing studies that are required for the Project. D. The Planning and Building Agency, City Attorney's Office, and the City Engineer will provide Services in connection with this Project, on an hourly basis. The City Attorney's Office hourly billing rate for reimbursable services is Dollars ($.00) per hour, and the City Engineer's hourly rate is Dollars ($.00) per hour. City may also utilize additional external consultants, including, but not limited to, attorneys and engineers, as necessary to complete the review. Said consultants will be billed at their agreed upon rates with the City. E. Developer has deposited with City the amount of Dollars ($ .00) to provide initial funding for the Services to be provided by Planning and Building Agency, City Attorney's Office and City Engineer. This amount shall be applied to pay invoices received from the Planning and Building Agency, City Attorney's Office and City Engineer for their Services. F. City shall provide Developer with a monthly statement of draws against the deposit described in Section &E., accompanied by invoices, time records, or other reasonable back-up therefor. 55G-6 G. It is understood and agreed that if any consultant begins work on the Project prior to execution and delivery of this Agreement by all parties, the fees incurred in connection with the Project prior to such execution and delivery will be subject to reimbursement pursuant to this Agreement upon execution and delivery of this Agreement by all parties and the deposit of funds by Developer pursuant to Section 3.C. 4. Deposit. A. At any time that City determines in good faith that the sums then held in any deposits made pursuant to Sections 3.E above are inadequate to pay for the projected Services to be paid from such deposit over the succeeding two (2) month period, Developer shall replenish the relevant deposit with the amount requested by City in writing, which amount shall not exceed Twenty -Five Thousand Dollars ($25,000) for any particular replenishment, within ten (10) Business Days of such written request. B. Should any deposit not be replenished in the time and amount specified as set forth in Section 6.A., City may direct that all Services to be paid from the deposit applicable to such Services be halted until such time as such applicable deposit is replenished. C. All deposits will be placed in a non -interest bearing trust account. Developer understands and agrees that City will not pay interest to Developer on the deposits, and Developer will not seek interest payments from City. D. No later than forty (40) days after the earliest to occur of: (1) final action is taken by City on the Project, (2) Developer notifies the City in writing of its withdrawal of the Project applications, or (3) the Project is otherwise abandoned, City will provide Developer with a final accounting of costs and expenses, accompanied by invoices, time records or other reasonable back-up therefor, which accounting the Developer agrees will be conclusive, in the absence of manifest error. Should the total reimbursement amount required for any Services be less than the total amount deposited by Developer with respect to such Services, City will refund any remaining deposit amount relating to such Services to Developer within forty-five (45) days after determining the final reimbursement amount for such Services. E. In the event Developer fails or refuses to make any of the deposits required herein, Developer shall be liable to City for the amount of all fees charged to the City for Services actually provided which exceed the amount of the deposit paid by Developer for such Services, and City shall have the right to pursue a breach of contract action, or any other pertinent legal action available to the City, against the Developer. Further, the prevailing party in any dispute and/or litigation necessary to enforce or interpret this Agreement shall be entitled to seek and collect its costs and reasonable attorney's fees from the other party. 5. Other Costs. Developer acknowledges that the cost of the Services does not include all application, permitting, inspection, or other fees which may be charged by City in connection with the Project. To the extent the fees ordinarily charged by City for 55G-7 projects similar to the Project relate to costs that are not reimbursed under this Agreement, such fees shall be separately paid in accordance with the relevant City fee schedule. 6. No Guarantee of Approval. Developer acknowledges that its payments and deposits described herein do not mean that the City will approve the Project nor that City staff will make a recommendation in favor of the Project. Even if the Project is not approved, Developer shall remain liable for all costs for Services actually provided concerning the Project. 7. Independence of Consultants. A. During the term of this Agreement, Developer will not directly or indirectly enter or propose to enter into any financial or business relationship with any of City's consultants that are working on the Project. B. Developer hereby acknowledges and agrees as follows: i. City has sole discretion to select which of its employees or independent contractors are assigned to work on Developer's application; ii. City has sole discretion to determine which persons City will hire as consultants to work on Developer's application. iii. As between City and Developer, City has sole discretion to direct the work and evaluate the performance of the consultants whom the City hires to work on Developer's application. City retains the right to terminate or replace at any time any consultant who is assigned to work on Developer's application. iv. City has sole discretion to determine the amount of compensation paid to consultants hired by City to work on Developer's application. V. City, not Developer, shall pay consultants hired or assigned by City to work on Developer's application from a City account under the exclusive control of City, which is to be funded by Developer as set forth in this Agreement. vi. Except for those disclosures required by law, including, without limitation, the Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City and its consultants shall be, to the extent permissible by law, privileged and confidential and not subject to disclosure to the Developer. vii. Developer shall have no claim to, nor shall Developer assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the consultants. C. City and Developer hereby acknowledge and agree that processing of Developers application is not contingent on the hiring of any specific consultant. 55G-8 D. City and Developer hereby acknowledge and agree that Developer's duty to reimburse City is not contingent upon the approval or disapproval of the proposed Project, or upon the result of any action of the City. E. Neither Developer nor its officers, employees or agents, shall communicate with , or any of the City's consultants, during the term of this Agreement without prior approval of the City, unless such communication is initiated by or any of the City's consultants, to obtain information about the Project which is needed to prepare the Environmental Document. 8. Term and Termination. Absent a formal withdrawal of the Project application(s), Developer shall not be entitled to terminate this agreement. If Developer does formally withdraw the Project application(s), Developer shall remain liable for all costs for the Services incurred through the date of termination. The term of this Agreement shall commence upon the execution and delivery of this Agreement by all parties hereto and shall terminate on the earliest to occur of: (a) the City taking final action on the Project; and (b) Developer formally withdrawing its Project applications. The provisions of Sections 6 through 23 (inclusive) shall survive termination of this Agreement. 9. Developer Default. A. Should Developer fail to perform any of its obligations under this Agreement, then City may, at its option, pursue any or all of the remedies available to it under this Agreement, at law or in equity. B. Without limiting any other remedy which may be available to it, if Developer fails to perform any. of its obligations under this Agreement,. City may cease performing its obligations under this Agreement. C. If any amounts remain owing to City for Services actually performed prior to termination of this Agreement, City may bring an action to recover all costs and expenses incurred by the City in completing such Services, together with interest thereon from the date incurred at the rate of ten percent (10%) per annum, or at the maximum legal rate, whichever is greater. D. City will not take the Project forward for consideration of discretionary actions unless and until all fees are paid. If any amounts remain owing to City pursuant to this Agreement for Services actually performed prior to termination of this Agreement, City may withhold consideration of discretionary actions, permits and/or certificates of occupancy until all such amounts are paid. 10. Indemnification. Developer further agrees that to the fullest extent permitted by law, the Developer shall defend, indemnify, protect, and hold harmless, the City of Santa Ana and its constituent public agency members, officers, employees, volunteers, attorneys and agents (in the aggregate, the "City Indemnitees") from any and all liability, demand, claim, action, or proceeding, whether actual, alleged, or threatened, including by way of example but not exclusion, proceedings of an s 55G-9 administrative or regulatory nature and proceedings that may be associated with alternative dispute resolution (an "Indemnified Claim") brought by third parties against any City Indemnities (including any advisory agency of the City), to attack, set aside, void, annul, or challenge the validity of any approvals granted for the Project, the Environmental Document concerning the Project, or seeking damages which may arise from any approvals granted for the Project, the Environmental Document concerning the Project, or this Agreement, other than liabilities, demands, claims, actions or proceedings caused by the sole active negligence or willful misconduct of the City or any City Indemnitee. In any defense of any City Indemnitees, City shall have the absolute right to unilaterally select the legal counsel for such City Indemnitees (with the intention of using one law firm to defend all City Indemnitees unless conflicts of interest preclude such joint representation), and any experts or consultants deemed necessary by City in an exercise of City's sole discretion. Developer shall reimburse City for one hundred percent (100%) of the City's actual fees and costs in connection with the Litigation ("Fees and Costs"). Such Fees and Costs shall include, but not be limited to, all reasonable court costs and attorneys' fees, including other City staff time, consultants or experts, spent in regard to defense of an Indemnified Claim. City shall promptly render notice to the Developer of the existence of the Indemnified Claim (a "Notice") and Developer shall defend the City Indemnitees at Developer's expense. City shall cooperate fully with Developer in the defense of any Indemnified Claim. In any Notice, City shall estimate the cost of its defense, which shall include, but not be limited to, actual attorney fees, court costs, expert witnesses and consultant fees, and all other costs that may arise out of, or be incurred by City in the defense of an Indemnified Claim. Upon such Notice, Developer shall promptly deposit funds equal to the first three (3) months of the Estimated Cost with the City and shall make additional deposits as and when required to fund the further costs of defending the City Indemnitees for such Indemnified Claim. Failure of Developer to deposit such funds shall be deemed a material breach of this Agreement. City shall refund, without interest, any unused portion of the deposits once litigation is finally concluded or a dispute is resolved regarding an Indemnified Claim. 11. Compliance with Law. Developer will, at its sole cost and expense, comply with all of the requirements of all federal, state, and local laws now in force, or which may hereafter be in force, pertaining to this Agreement. 12. Waiver of Breach. Any express or implied waiver of a breach of any term of this Agreement will not constitute a waiver of any further breach of the same or any other term of this Agreement. 13. Notices. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party shall be in writing and will be deemed received on: (i) the day of delivery if delivered by hand, e-mail (with 55G-10 confirmation of receiving party) and fax (both email and fax required for notices delivered by email or fax), or overnight courier service, during regular business hours; or (ii) on the third business day following deposit, with postage prepaid, in the United States Postal Service and addressed to the contracting parties. Name, address, telephone numbers, and e-mail addresses of the Parties are as follows: City: City of Santa Ana Attention: Community Development Executive Director 20 Civic Center Plaza (M-25) Santa Ana, CA 92701 Telephone: (714) 647-5360 Fax: (714) 647-6549 E-mail: SMendoza asanta-ana.orq A Copy to: Sonia Carvalho City Attorney, City of Santa Ana 20 Civic Center Plaza (M-29) Santa Ana, CA 92701 Telephone: (714) 647-5203 Fax: (714) 647-6549 E-mail: SCarvalho(a,santa-ana.org Developer: Either party may change its address for the purpose of this Section by giving written notice of the change to the other party. 14. 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 the applicable rules of interpretation of contracts under the law of the State of California. 15. Business Day. For purposes of this Agreement, 'Business Day' means any day other than a Saturday, Sunday, a federal holiday, or a day on which City Hall for the City of Santa Ana is closed for the conduct of regular business. 16. Successors. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the respective parties hereto. However, this Agreement shall not be assigned by Developer in whole or in part without the prior written consent of City. 55G-11 17. Governing Law. This Agreement has been made in and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this Agreement will be in Orange County. 18. Attorneys' Fees. If a Party hereto files any action or brings any action or proceeding against another Party arising out of this Agreement, then the prevailing Party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of the City, salaries (or fees) and expenses of the lawyers employed by the City (allocated on an hourly basis) who may provide legal services in connection with the representation of the City in any such matter. 19. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this Agreement will remain in effect, unimpaired by the holding. 20. Integration. This instrument constitutes the sole agreement between City and Developer respecting the above matters, and correctly sets forth the obligations of City and Developer. Any Agreements or representations by City to Developer not expressly set forth in this instrument are void. 21. Construction. The language of each part of this Agreement will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party, whether or not that party drafted all or a portion hereof. 22. Authority/Modification. Each party represents and warrants that all necessary action has been taken by such party to authorize the undersigned to execute this Agreement on behalf of such party and to engage in the actions of such party described herein. This Agreement may be modified solely by written amendment signed by both City and Developer. City's City Manager, or designee, may execute any such amendment on behalf of City. 23. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date. Signature page follows 55G-12 ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA CARVALHO City (Attorney By: GYM f! LISA STORCK Assistant City Attorney DEVELOPER: Date: CITY OF SANTA ANA KRISTINE RIDGE City Manager RECOMMENDED FOR APPROVAL: MINH THAI, Director Planning and Building Agency M Name Title 55G-13 55G-14 EXHIBIT 2 REIMBURSEMENT AND INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF SANTA ANA AND FOR THE PAYMENT OF FEES AND COSTS RELATED TO CONTRACT ENVIRONMENTAL, LEGAL AND ENGINEERING SERVICES FOR THE DEVELOPMENT LOCATED AT IN SANTA ANA RELATED TO ENVIRONMENTAL DOCUMENTATION This Agreement ("Agreement") is entered into as of , by and between the CITY OF SANTA ANA, a charter city and municipal corporation, organized and existing under the Constitution and laws of the State of California ("City'), and , ("Developer"), who agree as follows: 1. Recitals. This Agreement is made with reference to the following facts and circumstances: A. (APN # Developer is seeking entitlement to certain real property consisting of a located at , in the City of Santa Ana ('Property") B. Developer has filed applications to develop the Property with a project and street improvements (the 'Project'), including approximately units, and square feet of commercial space and parking spaces. The discretionary applications may consist of a General Plan Amendment (GPA), Amendment Application (AA), Zoning Ordinance Amendment (ZOA), Variances, Site Plan Review, Conditional Use Permit, and Vesting Tentative Map. C. City does not have personnel with sufficient expertise to prepare or review the Environmental Document and related studies, reports and analyses for the project. In order for City to process the Project, City is in need of contracting with an environmental consultant. In addition to the environmental consultant, processing the Project will also require work to be performed by the City Attorney's Office and the City Engineer. The work to be performed by such persons and firms in processing the Project is collectively referred to herein as the "Services." D. City believes it is in the public interest for Developer to pay for such Services. E. Developer desires to move forward with the processing of its Project subject to the reimbursement obligations set forth herein. 2. Agreement to Pav for Services. Developer agrees to pay for all professional costs and expenses related to the Services as provided for in this Agreement, even though the actual amounts may be 55G-15 different than the proposal for the environmental consultant as listed in Section 3, and the amount of costs for the City Attorney's Office and City Engineer have not been estimated. 3. Environmental Consultant, City Attorney, and Contract Engineer Services. A. For the purpose of conducting the environmental analysis, the Environmental Consultant and their subcontractors will prepare technical analysis of: Air Quality and Greenhouse Gas Emissions, Traffic Impact Analysis, Phase 1 Site Assessment, Native American Coordination, Noise Study, and any other studies deemed necessary by the Environmental Consultant to properly conduct the environmental analysis. B. For the purpose of conducting the environmental analysis, the Developer has submitted a Conceptual Site Plan, Landscape Plan, Grading Plan, and Building Elevations/Renderings, Preliminary Water Quality Management Plan and Hydrology Report/Study ( ) Sewer/Water Study ( ). C. For the purpose of providing environmental and technical services, the City has received a Proposal to Provide Environmental and Technical Services from in the estimated amount of ($ .00) Dollars. The Scope of Services is attached herewith as Exhibit A, and the Cost Estimate is attached herewith as Exhibit B. Both Exhibits are incorporated herein by this reference. A 10% administrative overhead will be charged to developer for oversight of the Agreement. The City shall make the determination as to what type of Environmental Document is required after reviewing studies that are required for the Project. D. The Planning and Building Agency, City Attorney's Office, and the City Engineer will provide Services in connection with this Project, on an hourly basis. The City Attorney's Office hourly billing rate for reimbursable services is Dollars ($_ 00) per hour, and the City Engineer's hourly rate is Dollars ($.00) per hour. City may also utilize additional external consultants, including, but not limited to, attorneys and engineers, as necessary to complete the review. Said consultants will be billed at their agreed upon rates with the City. E. Developer has deposited with City the amount of Dollars ($ .00) to provide initial funding for the Services to be provided by Planning and Building Agency, City Attorney's Office and City Engineer. This amount shall be applied to pay invoices received from the Planning and Building Agency, City Attorney's Office and City Engineer for their Services. F. City shall provide Developer with a monthly statement of draws against the deposit described in Section 3.E., accompanied by invoices, time records, or other reasonable back-up therefor. E 55G-16 G. It is understood and agreed that if any consultant begins work on the Project prior to execution and delivery of this Agreement by all parties, the fees incurred in connection with the Project prior to such execution and delivery will be subject to reimbursement pursuant to this Agreement upon execution and delivery of this Agreement by all parties and the deposit of funds by Developer pursuant to Section 3.C. 4. Deposit. A. At any time that City determines in good faith that the sums then held in any deposits made pursuant to Sections 3.E above are inadequate to pay for the projected Services to be paid from such deposit over the succeeding two (2) month period, Developer shall replenish the relevant deposit with the amount requested by City in writing, which amount shall not exceed Twenty -Five Thousand Dollars ($25,000) for any particular replenishment, within ten (10) Business Days of such written request. B. Should any deposit not be replenished in the time and amount specified as set forth in Section 6.A., City may direct that all Services to be paid from the deposit applicable to such Services be halted until such time as such applicable deposit is replenished. C. All deposits will be placed in a non -interest bearing trust account. Developer understands and agrees that City will not pay interest to Developer on the deposits, and Developer will not seek interest payments from City. D. No later than forty (40) days after the earliest to occur of: (1) final action is taken by City on the Project, (2) Developer notifies the City in writing of its withdrawal of the Project applications, or (3) the Project is otherwise abandoned, City will provide Developer with a final accounting of costs and expenses, accompanied by invoices, time records or other reasonable back-up therefor, which accounting the Developer agrees will be conclusive, in the absence of manifest error. Should the total reimbursement amount required for any Services be less than the total amount deposited by Developer with respect to such Services, City will refund any remaining deposit amount relating to such Services to Developer within forty-five (45) days after determining the final reimbursement amount for such Services. E. In the event Developer fails or refuses to make any of the deposits required herein, Developer shall be liable to City for the amount of all fees charged to the City for Services actually provided which exceed the amount of the deposit paid by Developer for such Services, and City shall have the right to pursue a breach of contract action, or any other pertinent legal action available to the City, against the Developer. Further, the prevailing party in any dispute and/or litigation necessary to enforce or interpret this Agreement shall be entitled to seek and collect its costs and reasonable attorney's fees from the other party. 5. Other Costs. Developer acknowledges that the cost of the Services does not include all application, permitting, inspection, or other fees which may be charged by City in connection with the Project. To the extent the fees ordinarily charged by City for 3 55G-17 projects similar to the Project relate to costs that are not reimbursed under this Agreement, such fees shall be separately paid in accordance with the relevant City fee schedule. 6. No Guarantee of Approval. Developer acknowledges that its payments and deposits described herein do not mean that the City will approve the Project nor that City staff will make a recommendation in favor of the Project. Even if the Project is not approved, Developer shall remain liable for all costs for Services actually provided concerning the Project. 7. Independence of Consultants. A. During the term of this Agreement, Developer will not directly or indirectly enter or propose to enter into any financial or business relationship with any of City's consultants that are working on the Project. B. Developer hereby acknowledges and agrees as follows: i. City has sole discretion to select which of its employees or independent contractors are assigned to work on Developer's application; ii. City has sole discretion to determine which persons City will hire as consultants to work on Developer's application. iii. As between City and Developer, City has sole discretion to direct the work and evaluate the performance of the consultants whom the City hires to work on Developer's application. City retains the right to terminate or replace at any time any consultant who is assigned to work on Developer's application. iv. City has sole discretion to determine the amount of compensation paid to consultants hired by City to work on Developer's application. V. City, not Developer, shall pay consultants hired or assigned by City to work on Developer's application from a City account under the exclusive control of City, which is to be funded by Developer as set forth in this Agreement. vi. Except for those disclosures required by law, including, without limitation, the Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City and its consultants shall be, to the extent permissible by law, privileged and confidential and not subject to disclosure to the Developer. vii. Developer shall have no claim to, nor shall Developer assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the consultants. C. City and Developer hereby acknowledge and agree that processing of Developer's application is not contingent on the hiring of any specific consultant. rd 55G-18 D. City and Developer hereby acknowledge and agree that Developer's duty to reimburse City is not contingent upon the approval or disapproval of the proposed Project, or upon the result of any action of the City. E. Neither Developer nor its officers, employees or agents, shall communicate with or any of the City's consultants, during the term of this Agreement without prior approval of the City, unless such communication is initiated by or any of the City's consultants, to obtain information about the Project which is needed to prepare the Environmental Document. 8. Term and Termination. Absent a formal withdrawal of the Project application(s), Developer shall not be entitled to terminate this agreement. If Developer does formally withdraw the Project application(s), Developer shall remain liable for all costs for the Services incurred through the date of termination. The term of this Agreement shall commence upon the execution and delivery of this Agreement by all parties hereto and shall terminate on the earliest to occur of: (a) the City taking final action on the Project; and (b) Developer formally withdrawing its Project applications. The provisions of Sections 6 through 23 (inclusive) shall survive termination of this Agreement. 9. Developer Default. A. Should Developer fail to perform any of its obligations under this Agreement, then City may, at its option, pursue any or all of the remedies available to it under this Agreement, at law or in equity. B. Without limiting any other remedy which may be available to it, if Developer fails to perform any of its obligations under this Agreement, City may cease performing its obligations under this Agreement. C. If any amounts remain owing to City for Services actually performed prior to termination of this Agreement, City may bring an action to recover all costs and expenses incurred by the City in completing such Services, together with interest thereon from the date incurred at the rate of ten percent (10%) per annum, or at the maximum legal rate, whichever is greater. D. City will not take the Project forward for consideration of discretionary actions unless and until all fees are paid. If any amounts remain owing to City pursuant to this Agreement for Services actually performed prior to termination of this Agreement, City may withhold consideration of discretionary actions, permits and/or certificates of occupancy until all such amounts are paid. 10. Indemnification. Developer further agrees that to the fullest extent permitted by law, the Developer shall defend, indemnify, protect, and hold harmless, the City of Santa Ana and its constituent public agency members, officers, employees, volunteers, attorneys and agents (in the aggregate, the "City Indemnitees") from any and all liability, demand, claim, action, or proceeding, whether actual, alleged, or threatened, including by way of example but not exclusion, proceedings of an 5 55G-19 administrative or regulatory nature and proceedings that may be associated with alternative dispute resolution (an "Indemnified Claim") brought by third parties against any City Indemnities (including any advisory agency of the City), to attack, set aside, void, annul, or challenge the validity of any approvals granted for the Project, the Environmental Document concerning the Project, or seeking damages which may arise from any approvals granted for the Project, the Environmental Document concerning the Project, or this Agreement, other than liabilities, demands, claims, actions or proceedings caused by the sole active negligence or willful misconduct of the City or any City Indemnitee. In any defense of any City Indemnitees, City shall have the absolute right to unilaterally select the legal counsel for such City Indemnitees (with the intention of using one law firm to defend all City Indemnitees unless conflicts of interest preclude such joint representation), and any experts or consultants deemed necessary by City in an exercise of City's sole discretion. Developer shall reimburse City for one hundred percent (100%) of the City's actual fees and costs in connection with the Litigation ("Fees and Costs"). Such Fees and Costs shall include, but not be limited to, all reasonable court costs and attorneys' fees, including other City staff time, consultants or experts, spent in regard to defense of an Indemnified Claim. City shall promptly render notice to the Developer of the existence of the Indemnified Claim (a "Notice") and Developer shall defend the City Indemnitees at Developer's expense. City shall cooperate fully with Developer in the defense of any Indemnified Claim. In any Notice, City shall estimate the cost of its defense, which shall include, but not be limited to, actual attorney fees, court costs, expert witnesses and consultant fees, and all other costs that may arise out of, or be incurred by City in the defense of an Indemnified Claim. Upon such Notice, Developer shall promptly deposit funds equal to the first three (3) months of the Estimated Cost with the City and shall make additional deposits as and when required to fund the further costs of defending the City Indemnitees for such Indemnified Claim. Failure of Developer to deposit such funds shall be deemed a material breach of this Agreement. City shall refund, without interest, any unused portion of the deposits once litigation is finally concluded or a dispute is resolved regarding an Indemnified Claim. 11. Compliance with Law. Developer will, at its sole cost and expense, comply with all of the requirements of all federal, state, and local laws now in force, or which may hereafter be in force, pertaining to this Agreement. 12. Waiver of Breach. Any express or implied waiver of a breach of any term of this Agreement will not constitute a waiver of any further breach of the same or any other term of this Agreement. 13. Notices. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party shall be in writing and will be deemed received on: (i) the day of delivery if delivered by hand, e-mail (with :A 55G-20 confirmation of receiving party) and fax (both email and fax required for notices delivered by email or fax), or overnight courier service, during regular business hours; or (ii) on the third business day following deposit, with postage prepaid, in the United States Postal Service and addressed to the contracting parties. Name, address, telephone numbers, and e-mail addresses of the Parties are as follows: City: City of Santa Ana Attention: Community Development Executive Director 20 Civic Center Plaza (M-25) Santa Ana, CA 92701 Telephone: (714) 647-5360 Fax: (714) 647-6549 E-mail: SMendoza(cDsanta-ana.org A Copy to: Sonia Carvalho City Attorney, City of Santa Ana 20 Civic Center Plaza (M-29) Santa Ana, CA 92701 Telephone: (714) 647-5203 Fax: (714) 647-6549 E-mail: SCarvalho(c santa-ana.org Developer: f Either party may change its address for the purpose of this Section by giving written notice of the change to the other party. 14. 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 the applicable rules of interpretation of contracts under the law of the State of California. 15. Business Day. For purposes of this Agreement, `Business Day" means any day other than a Saturday, Sunday, a federal holiday, or a day on which City Hall for the City of Santa Ana is closed for the conduct of regular business. 16. Successors. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the respective parties hereto. However, this Agreement shall not be assigned by Developer in whole or in part without the prior written consent of City. 55G-21 17. Governing Law. This Agreement has been made in and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this Agreement will be in Orange County. 18. Attorneys' Fees. If a Party hereto files any action or brings any action or proceeding against another Party arising out of this Agreement, then the prevailing Party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees' mean and include, in the case of the City, salaries (or fees) and expenses of the lawyers employed by the City (allocated on an hourly basis) who may provide legal services in connection with the representation of the City in any such matter. 19. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this Agreement will remain in effect, unimpaired by the holding. 20. Integration. This instrument constitutes the sole agreement between City and Developer respecting the above matters, and correctly sets forth the obligations of City and Developer. Any Agreements or representations by City to Developer not expressly set forth in this instrument are void. 21. Construction. The language of each part of this Agreement will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party, whether or not that party drafted all or a portion hereof. 22. Authority/Modification. Each party represents and warrants that all necessary action has been taken by such party to authorize the undersigned to execute this Agreement on behalf of such party and to engage in the actions of such party described herein. This Agreement may be modified solely by written amendment signed by both City and Developer. City's City Manager, or designee, may execute any such amendment on behalf of City. 23. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date. Signature page follows 0 55G-22 ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA CARVALHO City Attorney By: LISA STORCK Assistant City Attorney Date: CITY OF SANTA ANA KRISTINE RIDGE City Manager RECOMMENDED FOR APPROVAL: MINH THAI, Executive Director Planning and Building Agency Name Title 55G-23 55G-24