REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT (“Agreement”) is between the CITY OF GONZALES, a political subdivision of the State of California, referred to herein as (“CITY”), and D’Arrigo Bros. Co., of California, referred to herein as (“APPLICANT”), all of whom shall collectively be referred to herein as (the “PARTIES”), and is made with reference to the following:
RECITALS
A. The APPLICANT approached the CITY to develop the “D’Arrigo – H2A Workforce Housing and Associated Site Work” on a 276-acre property in unincorporated Monterey County, adjacent to the City of Gonzales, or a portion thereof (the “PROPERTY”) and for the CITY to process permit applications (such as consideration of connecting to City of Gonzales utilities, and for the City to consider an extraterritorial service agreement and all work efforts, thereto) (“the PROJECT”) in accordance with the City of Gonzales General Plan and codes.
B. The CITY charges application processing fees for development projects, General Plan amendments, Code amendments, subdivisions, tentative and final maps, and other development related agreements and entitlements to recover CITY incurred costs. It is difficult to estimate the expected costs to process development projects due to variation in size and complexity, permits, plans and technical reports and related CITY costs. Therefore, development projects are processed on a time-and-materials basis with all costs borne by the applicant. Applicants for development projects are required to enter into a Reimbursement Agreement and to provide a Reimbursement Deposit, hereinafter defined, prior to CITY undertaking any work on the application.
IT IS THEREFORE AGREED, AS FOLLOWS:
1. Reimbursement for City Costs.
APPLICANT agrees to reimburse the CITY for all reasonably necessary direct, indirect, and overhead costs, including staff, planning, engineering, legal, environmental, translation and inspection costs, and any fees consistent with adopted City fee schedules, as applicable (“Reimbursable Expenses”), in connection with the following general scope of work:
(a) The preparation of reports and documents for use by the CITY, or other entities with jurisdiction over the Project development or Property, and the processing of development applications. (b) The review of Project applications, plans, and supporting technical reports. (c) Legal and outside counsel efforts.
(d) Public noticing including legal notices in newspapers. (e) The use of planning, engineering and other consultants for the preparation or review of Projectrelated plans, studies and technical reports and/or general assistance. Notwithstanding the foregoing, prior to the CITY retaining the services of outside consultants for the purpose of preparing specialized Project-related studies and reports, CITY shall provide APPLICANT with a written proposal from the outside consultant which includes the proposed cost to perform the services identified therein. APPLICANT shall have the right to review and comment upon all such proposals, and CITY shall take such comments into consideration before entering into any agreement for the desired service; and
(f) Public Works Improvement Plan Review.
Together, Sections 1(a)-(h) shall be referred to as the “CITY Work”.
2. Reimbursement Deposit.
The APPLICANT has deposited, or will deposit upon execution of this Agreement, with the CITY the sum of Twenty-Five Thousand Dollars ($25,000) (“Reimbursement Deposit”). The Reimbursement Deposit shall be held by CITY in a segregated account and applied by CITY to the payment of all Reimbursable Expenses associated with the Project as referenced in Paragraph A, as they accrue. The APPLICANT acknowledges that costs associated with CITY Work may exceed the Reimbursement Deposit. The CITY agrees to keep an account of all disbursements from the Reimbursement Deposit and will provide to APPLICANT a detailed statement accounting of charges being paid out of the deposited funds on a quarterly basis.
If at any time the Reimbursement Deposit is reduced to Five Thousand ($5,000) or less, the CITY shall immediately notify APPLICANT in writing, and APPLICANT shall, within thirty (30) working days after receipt of a written request from the CITY, make an additional deposit of funds sufficient to pay all encumbered and estimated city staff and consultant costs.
The APPLICANT further agrees that non-payment for processing and/or deposits entitles the CITY to discontinue the CITY Work. Interest will accrue on all sums unpaid thirty (30) days after billing at the maximum legal rate, and the CITY is entitled to recover its costs, including attorney’s fees, in collecting unpaid accounts.
Within sixty (60) calendar days after the completion of all CITY Work contemplated by this Agreement, the CITY will return to APPLICANT, without interest, all funds remaining on deposit after payment of all Reimbursable Expenses.
The PARTIES acknowledge that deposits to the Reimbursement Deposit is not a “source of income” within the meaning of the California Political Reform Act. (Government Code Section 87102.6.)
3. Indemnification and Hold Harmless Commitments
The APPLICANT agrees, to the fullest extent authorized by law, to defend, hold harmless and indemnify the CITY and its elected and appointed officials, officers, employees, agents and attorneys from and against all claims, liability, costs, expenses, loss or damages of any nature whatsoever, including reasonable attorney’s fees, fines and penalties, arising out of or in any way connected with CITY’s failure to perform its obligations under this Agreement, excluding the willful misconduct or the gross negligence of the CITY.
The APPLICANT further agrees that the CITY may use its own legal staff or outside counsel in connection with the defense of any of the CITY’s processing or approval efforts for the Project, and that all such costs shall be fully reimbursed by APPLICANT , provided APPLICANT has elected to proceed with the Project in light of any action brought against the CITY related to the Project.
In the event APPLICANT elects not to proceed with the Project as the result of any such action, APPLICANT shall only be responsible for those costs, including but not limited to legal fees, incurred through the date APPLICANT has notified the CITY that it elects not to proceed with the Project. CITY agrees to cooperate with APPLICANT in said defense of any action, at APPLICANT ’s cost and shall promptly notify APPLICANT of any such claim, action or proceeding. If CITY fails to promptly notify APPLICANT of any such claim, action or proceeding, or fails to cooperate in the defense thereof, APPLICANT shall not thereafter
be responsible to defend, indemnify or hold the CITY harmless.
4. Nature of Commitments
Execution of this Agreement shall in no way be deemed a covenant, promise or commitment by either the CITY or APPLICANT to enter into any subsequent Project-related agreement or to any specific Projectrelated obligation(s). Additionally, CITY makes no representations, promises, or guarantees with respect to the approval of any application or agreement generated pursuant to this Agreement submitted for discretionary approval by any legislative body of the City or any other entity with jurisdiction over the CITY Work.
5. Termination
This Agreement may be terminated for any reason by either party upon thirty (30) calendar days written notice of termination. The APPLICANT’s obligation to reimburse the CITY pursuant to this Agreement shall survive such termination and shall be valid and enforceable even in the event (i) the Project is withdrawn from the CITY’s consideration by APPLICANT, or (ii) the Project is ultimately disapproved by any entity with jurisdiction over the Project or abandoned by APPLICANT.
In the event either party provides notice of termination of this Agreement, APPLICANT agrees that all funds on deposit may be used by the CITY to reimburse the CITY for all outstanding Reimbursable Expenses incurred by the CITY for the CITY Work or the CITY’s consultants for CITY Work completed as of the effective date of such notice. Any remaining balance will be returned to APPLICANT, along with an accounting of all final disbursements, within thirty (30) days of termination.
6. Notices.
All notices, including but not limited to Written Notice of Termination, shall be sent by mail, postage prepaid, and written invoices, and other correspondence, shall be sent by either mail or e-mail, to the parties as follows:
If to CITY:
Taven M. Kinison Brown
Community Development Director
City of Gonzales
P.O. Box 647 / 147 Fourth Street
Gonzales, CA 93926
Email: [email protected]
If to the APPLICANT
D’Arrigo Bros. Co of California
12 Thomas Owens Way, Ste 200
Monterey, CA 93940
7. California Law and Attorney’s Fees
This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of any dispute, contest, arbitration or litigation between the PARTIES, the prevailing party in such dispute, contest, arbitration, or litigation shall be fully reimbursed by the other party for all costs, including reasonable attorneys’ fees, court costs, expert or consultant’s fees and reasonable travel and lodging expenses, incurred by the prevailing party in its successful prosecution or defense thereof, including any
appellate proceedings.
8. Successors and Assigns
This Agreement and all of its provisions shall bind the heirs, legal representatives, successors and assigns of APPLICANT.
9. No Agency. Joint Venture or Partnership
It is understood that the APPLICANT is not an agent of the CITY. The CITY and the APPLICANT hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing contained herein or in any documents executed in connection therewith shall be construed as making the CITY and APPLICANT joint venturers or partners.
10. Severability
If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the PARTIES. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provisions to a particular situation, is held to be invalid, void, or unenforceable, either the CITY or the APPLICANT may terminate this Agreement according to the termination provisions herein.
11. Execution
This Agreement shall be executed by authorized representatives of the CITY and APPLICANT. The persons executing this Agreement represent that they have the express authority to enter into agreements on behalf of the CITY and APPLICANT.
The terms and conditions of this Agreement are meant to supersede and supplant any and all other agreements between the parties, either oral or written, with respect to the subject matter established herein.
CITY OF GONZALES AVILA CONSTRUCTION
_________________________ ______________________________ Carmen Gil, City Manager Signer for D’Arrigo Bros. Co., of California Date: ___________ Date:_______________
Approved as to form:
Jarvis Fay & Gibson, LLP
Attorneys for the City of Gonzales
_____________________________
Michael F. Rodriquez, City Attorney
Date: ______________