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Lewis Investment Company, LLC A2013-54 A13 - 54' CITY OF CHINO HILLS AGREEMENT FOR SERVICES Environmental Impact Report(EIR) This Agreement is made on this day of , 20 /3 , California, by and between the City of Chino Hills, a California municipal corporation, ("CITY") and Lewis Investment Company, LLC, a California limited liability company, ("DEVELOPER"). RECITALS A. DEVELOPER is currently under contract to acquire the real property generally identified by the Chino Hills General Plan as a General Commercial designated property, commonly known as the "Higgins Brick property," and consisting of approximately 27 acres (the "Property"). B. DEVELOPER is seeking to close on its acquisition of the Property no later than March 1, 2014. C. DEVELOPER has requested that CITY expedite CITY's proposed General Plan Update adoption process as CITY staff's proposed plan for a mixed use designation of the Property would permit DEVELOPER to submit applications for DEVELOPER's contemplated plan of development for the Property ("Project"). The initial study prepared in connection with the General Plan Update indicates that it will have potential significant environmental impacts. Accordingly, CITY staff has prepared an incomplete draft Environmental Impact Report ("EIR") for the General Plan Update. In order to expedite the completion of the EIR, the DEVELOPER has agreed to fund a consultant who will complete the EIR under the direction of CITY as required by the California Environmental Quality Act (CEQA), Public Resources Code Sections 21000 et seq. and the state and local regulations promulgated pursuant thereto (collectively, the "Laws"). D. This Agreement is entered into pursuant to applicable state law including CEQA, as well as, Chino Hills Municipal Code Chapter 3.44. E. City believes it is in the public interest for DEVELOPER to pay for such services. TERMS NOW, THEREFORE, the CITY and the DEVELOPER, mutually agree as follows: 1 . REIMBURSEMENT. DEVELOPER agrees to reimburse CITY for the following: (i) an amount not to exceed $22,000 for costs and expenses incurred and related to completing the EIR for the General Plan Update pursuant to the contract between CITY and p3 Services ("CONSULTANT") (the "Consultant Fees"); and (ii) an amount not to exceed $2,640 for administrative fees equal•to twelve percent (12%) of the Consultant Fees to compensate the CITY for staff costs incurred in managing the contract with CONSULTANT (the "Administrative Fees") (the Constant Fees and the Page 1 of 5 CITY OF CHINO HILLS AGREEMENT FOR SERVICES Administrative Fees are collectively referred to herein as the "Reimbursement"). Upon the mutual execution of this Agreement, DEVELOPER shall pay CITY the sum of$24,640 as a deposit (the "Deposit") against the Reimbursement. The Deposit represents CITY's best estimate of DEVELOPER's ultimate obligations hereunder. After a final decision is made on the EIR by the City Council, or upon abandonment by DEVELOPER pursuant to Section 2 below, and satisfaction of the Consultant Fees and the Administrative Fees, CITY shall refund to DEVELOPER any amount of the Deposit which remains unexpended consistent with Chino Hills Municipal Code Chapter 3.44. 2. ABANDONMENT OF PROJECT. In the event DEVELOPER abandons the Project prior to a final decision on the EIR by the City Council, and upon written request from DEVELOPER directed to the City Manager of the CITY, the CITY will suspend further expenses incurred under this Agreement. 3. INDEPENDENT CONSULTANTS. 3.1. During existence of CITY's contract with CONSULTANT, and for a time period of one (1) year from final resolution of DEVELOPER's application, neither DEVELOPER, nor any of its representatives, agents, or other persons acting in concert with DEVELOPER will enter into any financial or business relationship with CONSULTANT or propose to enter into any future such relationship with CONSULTANT, without prior written notice to and approval in writing by CITY. 3.2. DEVELOPER hereby acknowledges and agrees as follows: 3.2.1. CITY has sole discretion to select which CITY employees are assigned to work on the EIR; 3.2.2. CITY has sole discretion to determine which persons CITY will hire as employees and contractors to work on the EIR; 3.2.3. CITY has sole discretion to direct the work and evaluate the performance of the employees and contractors hired by the CITY to work on the EIR, and CITY retains the right to terminate or replace at any time any employee or contractor who is assigned to work on the EIR free of any input by or consultation with DEVELOPER; 3.2.4. CITY has sole discretion to determine the amount of compensation paid to employees or contractors hired by CITY to work on the EIR; and Page 2 of 5 CITY OF CHINO HILLS AGREEMENT FOR SERVICES 3.2.5. CITY, not DEVELOPER, shall pay employees and contractors hired or assigned by CITY to work on the EIR from a CITY account under the exclusive control of CITY. Thus, Consultant shall submit invoices to CITY and CITY shall pay Consultant without input or review of invoices by DEVELOPER. 3.3. CITY and DEVELOPER hereby acknowledge and agree that processing of the EIR is not contingent on the hiring of any specific contractor. 3.4. CITY and DEVELOPER hereby acknowledge and agree that the DEVELOPER's duty to reimburse the CITY pursuant to this Agreement or the Laws is not contingent upon the CITY's approval or disapproval of the EIR, the Project or upon the result of any action of the CITY. 3.5. Neither DEVELOPER nor its officers, employees or agents, shall communicate with CONSULTANT during the term of this Agreement without prior approval of the CITY. 4. 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. 5. ASSIGNMENT. This Agreement shall not be assigned in whole or in part, without the prior written consent of CITY. 6. NOTICE. All Notices permitted or required under this Agreement shall be in writing, and shall be deemed made when delivered to the applicable party's representative as provided in this Agreement. Additionally, such notices may be given to the respective parties at the following addresses, or at such other addresses as the parties may provide in writing for this purpose. Such notices shall be deemed made when personally delivered or when mailed forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid, and addressed to the party at its applicable address. CITY: CITY OF CHINO HILLS 14000 City Center Drive Chino Hills, CA 91709 Attention: Joann Lombardo, Community Development Director Page 3 of 5 CITY OF CHINO HILLS AGREEMENT FOR SERVICES DEVELOPER: Lewis Investment Company, LLC 1156 N. Mountain Avenue Upland, CA 91786 Attention: David Robbins 7. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California, 8. ENTIRE AGREEMENT; MODIFICATION. The parties hereby acknowledge and agree that each party has read this Agreement, that each party has been given the opportunity to review this Agreement together with all other currently existing documents necessary to understand and/or implement the provisions of this Agreement with legal counsel independently, and, in addition, that each party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions of this Agreement. Both parties each further agree that all understandings and agreements previously had between the parties respecting the transactions contemplated by this Agreement are knowingly, consciously, and deliberately merged into this Agreement, which fully and completely expresses the agreement of the parties and the "meeting of their minds." There are no representations, warranties, or agreements except as specifically and expressly set forth herein or to be set forth in the instruments or other documents delivered or to be delivered hereunder. Any agreement, statement, or promise not contained in the Agreement, and any modification to the Agreement, will be effective only if signed by both parties. [NOTE TO PARTIES: INITIALING THIS PARAGRAPH IS AN AFFIRMATION THAT EACH STATEMENT IN THIS PARAGRAPH IS A TRUE AND ACCURATE STATEMENT AS IT APPLIES TO THE INITIALING PARTY.] CITY's Initials DE#ELOPER's Initials 9. EXECUTION. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 10. AUTHORITY TO ENTER AGREEMENT. The DEVELOPER has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each party warrants that the individuals who have Page 4 of 5 CITY OF CHINO HILLS AGREEMENT FOR SERVICES signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. [SIGNATURES FOLLOW ON NEXT PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement the 5.1`" day of , 20 /3 . U DEVELOPER: LEWIS INVESTMENT COMPANY, LLC, a California limited liability company By: LEWIS OPERATING CORP., a California corporation - Its Sole Manager By: Oh vkdhoi Name: -14' X /AN -E a-1°- Its: Authorized Aaent CITY OF CHINO HILLS: Michael S. FleageWCyi Manager ATTEST: City Clerk Page 5of5