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HomeMy WebLinkAboutST. JOSEPH AND TALLER SAN JOSE (REIMBURSEMENT AGMT) - 2014A -2014 -221 This Reimbursement Agreement ( "Agreement ") is made this I 71 day of September, 2014, by and between the City of Santa Ana, California, a municipal corporation organized as a charter city ( "CITY "), St. Joseph Health System, a California nonprofit public benefit corporation ( "SHIS "), and Taller San Jose, a California nonprofit public benefit corporation ( "TSX ). SJHS and TSJ are together referred to as ("DEVELOPER'). CITY and DEVELOPER are sometimes referred to herein as the "Parties" or individually as a "Party" RECITALS A. CITY and DEVELOPER are parties to an Exclusive Right to Negotiate Agreement, dated September I2 ", 2014 (the "Negotiating Agreement "), pursuant to which CITY and DEVELOPER have entered into discussions necessary to evaluate the Project and to negotiate a Development Agreement, if any. Capitalized terms used but not defined in this Agreement have the meaning assigned to them in the Negotiating Agreement. B. The Parties desire to enter into this Agreement to establish the terms and conditions upon which DEVELOPER will reimburse CITY for bona fide, actual costs paid and/or costs accrued in connection with and directly related to the Project and the negotiation and execution of the Development Agreement, if any, such as expenses for engineers, architects, financial consultants, legal, planning and other consultants and contractors retained by the CITY ( "Eligible Expenses"), NOW THEREFORE, in consideration of the mutual covenants set forth herein and the mutual benefits to be derived therefrom, the Parties agree as follows: TERMS 1. Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis upon which CITY and DEVELOPER have entered into this Agreement. CITY and DEVELOPER each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 2. Reimbursement of Costs. DEVELOPER agrees to reimburse the CITY for Eligible Expenses, up to a maximum of Forty- Thousand Dollars ($40,000.00), payable within thirty (30) days after receipt by DEVELOPER of written documentation from CITY evidencing such Eligible Expenses. If (a) CITY terminates the Negotiating Agreement without cause or (b) DEVELOPER terminates the Negotiating Agreement for cause pursuant to Section 11.3 of the Negotiating Agreement, CITY agrees that it shall refund to DEVELOPER the amount of any Eligible Expenses that DEVELOPER has paid within ten (10) days of such tenmination. DEVELOPER acknowledges and agrees that expiration of the Negotiation Period as set forth in Section '12(a) of the Negotiating Agreement shall not constitute without cause termination of the Negotiation Agreement for purposes of this Section. 3. Assignability. This Agreement may not be assigned by any Party without the prior and express written consent of the other Parties, which consent shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee. 4. No Prior Agreements and No Oral Modifications. This Agreement represents the entire understanding of CITY and DEVELOPER with respect to the subject matter hereof and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, only in writing signed by the authorized representatives of CITY and DEVELOPER. 5. Binding Upon Successors. This Agreement and each of its terms shall be binding upon CITY and DEVELOPER and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 6. No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties. No person or entity has any rights or remedies under this Agreement. 7. Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either CITY or DEVELOPER against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its actual attorneys` fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal. 8. Jurisdiction and Venue. This Agreement is executed and is to be performed in Orange County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. CITY and DEVELOPER each consent to the personal jurisdiction of the court in any such action or proceeding. 9. Severabra ility. If any term or provision of this Agreement is found to be invalid or unenforceable, CITY and DEVELOPER both agree that they would have executed this Agreement notwithstanding the invalidity of such term. or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety. 1.0. Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terns and language of each Section. 11. Representations of the Parties. Each person signing this Agreement on behalf of a Party which is not a natural person hereby represents and warrants to the other Party that all necessary legal prerequisites to that Party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. [Signatures on following page] IN WITNESS WHEREOF, this Agreement has been executed by the Parties to be effective as of the Effective Date. CITY OF SANTA ANA City of Santa Ana, California a municipal oration 1 7 f By: G DAVID CAVAZOS City Manager Attest: y� MARIA D. HUIZAR T"� Clerk of the Council APPROVED AS TO rORM SONIA R. CARVAL.HO City Attome B Jose Sandoval 'ef Assistant City Attorney St. Joseph Health System, a California nonprofit public benefit corporation By:� Annette Walker Its: Executive Vice President, Strategic Services Taller San Jose, a California nonprofit corporatio By; hawna Smith Its. Executive Director & CEO