HomeMy WebLinkAboutE-12 Staff Report - Reimbursement Agreement DhammakayaCONSENT ITEM
E-12
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: MATT MARQUEZ, DIRECTOR OF ECONOMIC AND COMMUNITY
DEVELOPMENT
DATE: JUNE 3, 2019
SUBJECT: REQUEST AUTHORIZATION TO APPROVE REIMBURSEMENT AGREEMENT
TEMPLATE AND REIMBURSEMENT AGREEMENTS FOR DHAMMAKAYA
INTERNATIONAL MEDITATION CENTER AND GLADSTONE LAND COMPANY
BACKGROUND & ANALYSIS:
There is a need for a standardized agreement between the City and applicants for development projects
that require consultant related services. The costs of the consultants are paid for by the applicant, with
the City generally overseeing the work. The agreement needed would outline the various
responsibilities of the applicant for a particular project and specify their re-payment responsibilities.
Some of the responsibilities would include, but not be limited to, re-payment procedures and required
minimum balances of all cost and fees from the various consultants working on a project.
The Planning Division is currently working on two larger projects that are requiring the assistance and
expertise of outside consultants. The project’s scopes are outlined below:
The Dhammakaya International Meditation Center is requesting a Specific Plan Amendment to:
1. Adjust the existing phasing plan;
2. Modify the Meditation Hall and Parking Lot Design; and
3. Modify the landscape plan and other project details.
The consultant would work on the planning and environmental aspects of the project during the
entitlement process.
The Barbara Subdivision Project is an existing residential parcel between Barbara Avenue, Aspan
Avenue and 1st Street. The applicant is seeking approval of the following:
1.13 Single Family Residences
2.8 Accessory Dwelling Units
3. Tentative Tract Map to subdivide one parcel into 13 individual parcels
APPROVED
CITY COUNCIL
6/3/2019
Reimbursement Agreement
June 3, 2019
Page 2 of 2
The consultant would work on the environmental aspect of the project during the entitlement process.
The assistance of consultants for the project’s listed above requires approval of agreements for said
assistance. As stated, it is the applicant’s responsibility to cover the costs of the consultants’ work. The
proposed agreement template will provide a framework to further insure the City gets reimbursed for
costs associated with this type of work. The two projects mentioned above would be subject to proposed
reimbursement agreement.
RECOMMENDATION:
Staff recommends that the City Council take the following actions:
1) Approve Reimbursement Agreement Template for future development projects; and
2) Approve Reimbursement Agreement for Dhammakaya International Meditation Center
3) Approve Reimbursement Agreement for Gladstone Land Company
4) Authorize the City Manager to execute, in a form acceptable to City Attorney, on behalf of the
City.
FISCAL IMPACT:
There is no fiscal impact associated with the proposed recommendations.
Prepared by: Reviewed by:
Manuel Muñoz Matt Marquez
Planning Manager Director of Economic and Community Development
Fiscal Reviewed by: Reviewed and Approved by:
Talika M. Johnson Sergio Gonzalez
Director of Finance City Manager
Attachments:
1) Reimbursement Agreement with Dhammakaya International Meditation Center
2) Reimbursement Agreement with Gladstone Land Company
3) Template of Reimbursement Agreement
REIMBURSEMENT AGREEMENT
Between
CITY OF AZUSA
a California municipal corporation
and
DHAMMAKAYA INTERNATIONAL
MEDITATION CENTER
A 501(c)(3) Non-Profit Organization
Attachment 1
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (this "Agreement") is made this 3rd day of June, 2019,
by and between the City of Azusa, a California municipal corporation (the "City"), and
DHAMMAKAYA INTERNATIONAL MEDITATION CENTER, a California Non-Profit
Organization (the "Applicant" and together with the City, occasionally, each a “Party”
and collectively the “Parties”).
RECITALS
This Agreement is made with respect to the following facts:
A. The Applicant is the lessee of real property generally known as 865 E.
Monrovia Place (the "Property") located within the City of Azusa, County of Los
Angeles, California.
B. The Applicant is requesting a Specific Plan Amendment to adjust the
phasing plan, modify the Meditation Hall and Parking Lot Design, and modify the
landscape plan and other project details at the Property (the "Project"). As part of the
Project, the Applicant will submit applications for discretionary approvals and the City
will consider such applications and prepare the appropriate environmental
documentation required pursuant to the California Environmental Quality Act (Pub. Res.
Code §§ 21000 et seq.) (“CEQA”).
C. To provide the City with the needed expertise and information necessary
for the City's review process concerning the Project, it is necessary for the City to
access the services of outside legal, environmental, planning, and other experts for the
Project (collectively, the "Consultants").
D. As a condition to the City's completion 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 Project review process in the manner and amounts set
forth in this Agreement. The Applicant's reimbursement of Consultant costs and
expenses under this Agreement will ensure that the City has the necessary resources to
diligently and efficiently process the Project.
TERMS
NOW, THEREFORE, in consideration of the following mutual promises and
agreements, City and Applicant agree as follows:
1 Incorporation of Recitals. The Parties agree that the Recitals
constitute the factual basis upon which they have entered into this Agreement. The
Parties 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. City to Retain Consultants. As a necessary and indispensable part
of its fact finding process relating to the review of the Applicant's proposed Project, the
City shall retain the services of Consultants as set forth in Section 4 to provide advice
as the City may deem necessary in its reasonable discretion. The contemplated
general scopes of work of the Consultants for the Project is attached hereto as Exhibit
A, but the City reserves the right, in its reasonable discretion, to amend the scope of
work (pursuant to Section 5) as it deems necessary and appropriate to the City's proper
review and consideration of the Project. The City will provide Applicant with written
notice of any amended scope of work as set forth in Section 5.
2.1 No Applicant/Consultant Privity. The Applicant agrees that,
notwithstanding the Applicant's reimbursement obligations under this Agreement,
Consultants shall be engaged as contractors exclusively by the City and not by the
Applicant. 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 Applicant. The Applicant agrees that it shall have no claim to, nor shall it 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.
3. Applicant to Cooperate with Consultants. The Applicant agrees to
cooperate in good faith with the Consultants. The Applicant agrees that it will instruct its
agents, employees, consultants, contractors, and attorneys to reasonably cooperate
with the Consultants and to provide all necessary documents or information reasonably
requested of them by the City and/or the Consultants; provided, however, that the
foregoing shall not require the disclosure of any documents or information of the
Applicant which is proprietary, confidential, a trade secret, or subject to attorney-client
communication, attorney work product or other legal privilege. Notwithstanding the
foregoing, City acknowledges that certain information provided by Applicant may be
sensitive or proprietary in nature, and, to the extent allowed by law (including, without
limitation, the Public Records Act), City agrees to keep such information confidential.
4. City's Selection of Consultants. The City has retained the following
as Consultants pursuant to this Agreement, but may retain additional consultants or
sub-consultants pursuant to the terms of this Agreement: (1) MIG (Planning); (2) MIG
(Environmental); and (3) Best Best & Krieger LLP (Legal Services). The City will
provide Applicant with written notice of any additional consultants or sub-consultants
engaged within ten (10) days of that engagement; provided, however, any engagement
that would result in a Change in Scope (defined in Section 5) shall be subject to the
terms and conditions of Section 5.
5. Applicant's Reimbursement of Fees, Costs and Expenditures. The
Applicant shall reimburse the City for one hundred percent (100%) of the actual fees,
costs and other expenditures reasonably incurred by the City relative to the Consultant
costs (the "Costs"). Applicant further understands and agrees that Costs are based
upon the rates provided by Consultants attached hereto as Exhibit B.
5.1 Estimated Costs; Deposit Account: The City has preliminarily
reviewed the scope of work required and has estimated the aggregate Costs for all
consultants to be approximately sixty-seven thousand and seven hundred ninety dollars
($67,790.00) (the "Estimated Costs"). Notwithstanding the details provided for the
Estimated Costs, the Estimated Costs also include Costs expended by the City for the
Project that were incurred prior to the submittal of a formal application, and a portion of
the Estimated Costs will be used to reimburse the City for its previous Costs. Within
forty-five (45) calendar days after the execution of this Agreement, the Applicant shall
submit a deposit in the amount of twenty thousand Dollars ($20,000.00) to cover the
Estimated Costs, which amount the City shall separately account for in a Project deposit
account (the "Deposit Account").
5.2 Replenishment of Deposit: As the Consultants invoice the
City for fees, costs, and expenditures associated with the Project, the City may draw
upon the Deposit Account to make the required payments. At any time that the balance
in the Deposit Account drops below five thousand Dollars ($5,000.00), the City may
make demand in writing on Applicant to replenish the Deposit Account to twenty
thousand Dollars ($20,000.00), and Applicant shall submit the required amount of funds
to City within forty-five (45) calendar days after having received the City’s written
request. In the event that Applicant fails to make any required deposit within such forty-
five (45) day period, then the City may issue Applicant a written thirty (30) day notice to
cure, and if Applicant does not cure within thirty (30) days of receiving such notice to
cure, City shall have the right to consider the Project applications as withdrawn and
cease processing such applications.
5.3 Excess Costs: The City shall not exceed the Estimated
Costs without consulting with Applicant regarding the need for additional services that
cause the Costs to exceed the Estimated Costs (the "Excess Costs"). The City shall
consult with the Applicant prior to (a) amending any scope of services to be provided by
the Consultants or retaining any additional consultant or sub-consultant that would be
reasonably expected to result in Excess Costs or (b) authorizing any work by an existing
Consultant reasonably expected to cause that Consultant’s fees to exceed the sum set
forth for such Consultant in Exhibit B (each a “Change in Scope”).
The Applicant's obligation to reimburse the City for the Excess Costs shall
be contingent upon the City providing Applicant with written notice of the Change in
Scope and the estimated Excess Cost thereof at least ten (10) days prior to the
commencement of the work to be performed under such Change in Scope. After the
period set forth in the preceding sentence expires, if the City has not received an
objection from Applicant, Applicant shall be obligated to pay the Excess Costs in the
same manner as the Estimated Costs provided above, including, but not limited to,
replenishing the Deposit Account.
If the Applicant notifies the City that Applicant disagrees with the City's
incurring of Excess Costs, then the Applicant's sole and exclusive remedy will be to
terminate this Agreement pursuant to Section 8 of this Agreement, subject to the
Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the
date of termination, whether or not yet paid by the City to any Consultants.
5.4 Records: The City shall maintain accurate records of
invoices received from, and payments made to, the Consultants resulting from the
Project, and will provide an accounting of payments made within thirty (30) days after
request by Applicant. In the event that excess funds remain in the Deposit Account
upon conclusion of the Project, or termination as defined in Sections 6, 7 and 8, and
after all final payments to the Consultants have been made, the City agrees to refund
that excess amount, if any, to Applicant within fifteen (15) days of final payment to the
Consultants. Alternatively, if the Costs of the services of the Consultants exceed the
Estimated Costs and Excess Costs, if any, then Applicant shall remain obligated to pay
for all such Costs. Applicant shall pay any such amount within fifteen (15) days of
demand for payment by City.
6. Discretionary Approvals. Applicant and City understand and agree
that Applicant’s applications to City concerning the Property are subject to the approval,
conditional approval or disapproval of the Planning Commission and/or City Council of
City. Further, Applicant and City understand and agree that some or all of the
applications may require findings (including, without limitation, environmental
determinations under CEQA) to be made by those legislative bodies, in some instances
following duly noticed public hearings. Nothing set forth in this Agreement shall be
deemed to require approval or conditional approval of any or all of such land use and
other applications by those legislative bodies, notwithstanding Applicant's undertaking
and completion of its obligations under this Agreement.
7. Term. The term of this Agreement shall commence on the date
that this Agreement is fully executed by the Parties, and shall terminate on the earlier of
the date that: (a) all services required for the Project by Consultants have been
completed to the City's reasonable satisfaction and the Applicant has satisfied all of its
obligations under this Agreement; or (b) Applicant withdraws the application(s). For
purposes of this Section 7, Applicant's obligations shall include, but shall not be limited
to, its obligation to reimburse the City for Estimated Costs and Excess Costs in
accordance with Section 5. The Applicant's obligation to reimburse the City as provided
in this Agreement shall survive the termination of this Agreement.
8. Early Termination.
8.1 By City. The City may, in its reasonable discretion,
terminate this Agreement prior to the term set forth in Section 6, without cost or liability
to the City, if Applicant: (a) fails to satisfy any obligation of this Agreement within any
applicable cure period; or (b) fails to reasonably prosecute its application(s) for the
Project; provided that, prior to such termination, City must provide Applicant with a thirty
(30) day written notice of such termination, which notice shall contain enough
information to reasonably inform Applicant of: (x) the reason for such termination; and
(y) what must be done to effectuate a cure, and Applicant must fail to cure within such
thirty (30) day period, or, in the event of a cure that reasonably takes longer than thirty
(30) days to complete, fails to commence and diligently prosecute such cure within such
thirty (30) day period. In the event of such termination under this Section 8.1, Applicant
shall be deemed to have withdrawn its application(s) for the Project.
8.2 By Applicant. The Applicant may, in its sole discretion,
terminate this Agreement prior to the end of the term set forth in Section 6, upon thirty
(30) days' prior written notice to the City; provided, however, that Applicant's right to so
terminate this Agreement is expressly contingent upon Applicant satisfying both of the
following: (a) Applicant shall give City written notice withdrawing its application(s) for the
Project; and (b) Applicant shall satisfy all of its obligations under this Agreement up
through the proposed effective date of termination. For purposes of this Section 8.2,
Applicant's obligations shall include, but shall not be limited to, its obligation to
reimburse the City for Estimated Costs and Excess Costs in accordance with Section 5.
8.3 Notification: Within two (2) business days following either
the City's decision to terminate this Agreement or the City's receipt of written notice
indicating the Applicant's decision to terminate this Agreement, the City shall notify all
Consultants and instruct them to cease work on the Project. Consultants shall also be
instructed to bill the City for any services completed prior to the date of termination.
9. Assignability. This Agreement may not be assigned by either Party
without the prior and express written consent of the other Party, which consent shall not
be unreasonably withheld, conditioned or delayed. In determining whether to approve a
request by the Applicant to assign this Agreement, the City may consider, among other
things, the proposed assignee's financial status and commitment to the Project. 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. Notwithstanding the foregoing, Applicant may freely assign this Agreement to
any purchaser of the entire Property or to an affiliate of Applicant’s.
10. No Oral Modifications. This Agreement represents the entire
understanding of the City and the Applicant, 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 by a writing signed by both the
authorized representatives of both the City and the Applicant. All modifications to this
Agreement must be approved by the City Manager of the City of Azusa.
11. Binding Upon Successors. This Agreement and each of its terms
shall be binding upon the City, the Applicant and their respective officers, elected
officials, employees, agents, contractors, and permitted successors and assigns.
12. Legal Challenges. Nothing herein shall be construed to require City
to defend any third party claims and suits challenging any action taken by the City with
regard to any procedural or substantive aspect of the City’s approval of development of
the Property, any required entitlements, the environmental process, or the proposed
Project. The Applicant may, however, in its sole and absolute discretion, appear as a
real party in interest in any such third party action or proceeding, and in such event, it
and the City shall defend such action or proceeding and the Applicant shall be
responsible and reimburse the City for whatever legal fees and expert or other costs, in
their entirety, including actual attorneys' fees, which may be incurred by the City in
defense of such action or proceeding. This City shall have the absolute right to retain
such legal counsel as the City deems necessary and appropriate, and the Applicant
shall reimburse the City for any and all attorneys' fees and expert or other costs incurred
by the City as a result of such third party action or proceeding. Applicant may, at any
time, notify City in writing of its decision to terminate such reimbursement obligation
and, thereafter, the City may choose, in its sole discretion, to defend or not defend such
third party action or proceeding. In the event that the City decides not to continue the
defense of such third party action or proceeding, Applicant shall be obligated to
reimburse City for any and all costs, fees, penalties or damages associated with
dismissing the action or proceeding. In the event that the City decides to continue the
defense of such third party action or proceeding, Applicant shall have no further
obligation to reimburse City for its attorney fees and expert or other costs.
13. Attorneys' Fees. In the event that any action or proceeding,
including arbitration, is commenced by either the City or the Applicant 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.
14. Jurisdiction and Venue. This Agreement is executed and is to be
performed in Azusa, Los Angeles County, California. Any action or proceeding brought
relative to this Agreement shall be heard in the appropriate court in the County of Los
Angeles, California. The City and the Applicant each consent to the personal
jurisdiction of the court in any such action or proceeding.
15. Severability. If any term or provision of this Agreement is found to
be invalid or unenforceable, the City and the Applicant 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.
16. 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 terms and language of each Section. References to “Sections” are to
sections of this Agreement, unless otherwise specifically provided.
17. Representations of Authority. Each Party 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.
18. Exhibits. All references in this Agreement to “Exhibits” shall be
construed as though the words “hereby made a part hereof and incorporated herein by
this reference” were, in each case, appended thereto.
19. Notices. Notices required under this Agreement shall be sent to the
following:
If to City: If to the Applicant:
City Manager Polwat Nakalak
City of Azusa Dhammakaya International
Meditation Center
213 E. Foothill Blvd. 865 E. Monrovia Place
Azusa, CA 91702 Azusa, CA 91702
Notices given pursuant to this Agreement shall be deemed received as follows:
(1) If sent by United States Mail - on the date of receipt by the
receiving party.
(2) If by facsimile - upon transmission and actual receipt by the
receiving party.
(3) If by express courier service or hand delivery - on the date of
receipt by the receiving party.
The addresses for notices set forth in this Section 19 may be changed upon
written notice of such change to either the City or the Applicant, as appropriate.
[SIGNATURES ON FOLLOWING PAGES]
SIGNATURE PAGE TO
REIMBURSEMENT AGREEMENT
CITY OF AZUSA
a California municipal corporation
By: ____________________________________
City Manager
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
________________________________
City Attorney
DHAMMAKAYA INTERNATIONAL
MEDITATION CENTER
a California based Non-Profit Organization
By:_____________________________
Polwat Nakalak
EXHIBIT A
SCOPE OF SERVICE FOR CONSULTANTS
MIG (PLANNING)
Any and all planning services needed for the Project as described in the Scope of Work
submitted by MIG. (See Exhibit A-1)
MIG (ENVIRONMENTAL)
Any and all environmental and traffic engineering services needed for the Project,
including CEQA compliance, and all needed experts or sub-consultants as described in
the Scope of Work submitted by MIG (See Exhibit A-1)
BEST BEST & KRIEGER LLP (LEGAL)
Any and all legal services as needed for the Project, including, but not limited to, review
of the environmental documents, permits, and related documents and any City approval
documents needed for the Project.
OTHER CONSULTANTS
Any and all other consultants determined by the City to be reasonably necessary for its
review and processing of the Project application(s).
EXHIBIT B
ESTIMATES COSTS FOR EACH CONSULTANT
MIG (PLANNING & ENVIRONMENTAL)
MIG’s current published rates for a total estimated amount of $65,200.
BEST BEST & KRIEGER LLP (LEGAL)
Standard private rates per attorney (minus 10% discount) for a total estimated amount
to be determined.
OTHER CONSULTANTS
To be determined.
REIMBURSEMENT AGREEMENT
Between
CITY OF AZUSA
a California municipal corporation
and
GLADSTONE LAND COMPANY
A California Limited Liability Company
Attachment 2
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (this "Agreement") is made this 3rd day of June, 2019,
by and between the City of Azusa, a California municipal corporation (the "City"), and
GLANDSTONE LAND COMPANY, a California Limited Liability Company (the
"Applicant" and together with the City, occasionally, each a “Party” and collectively the
“Parties”).
RECITALS
This Agreement is made with respect to the following facts:
A. The Applicant is the owner of real property generally known as 120 N.
Aspan Avenue (the "Property") located within the City of Azusa, County of Los
Angeles, California.
B. The Applicant proposes to work with the City to establish a Design Review
for the construction of 13 single-family homes (subdivision), Accessory Dwelling Unit
Permit for the construction of 8 accessory dwelling units, and Tentative Tract Map to
subdivide one parcel into 13 individual parcels, (the "Project"). As part of the Project,
the Applicant will submit applications for discretionary approvals and the City will
consider such applications and prepare the appropriate environmental documentation
required pursuant to the California Environmental Quality Act (Pub. Res. Code §§
21000 et seq.) (“CEQA”).
C. To provide the City with the needed expertise and information necessary
for the City's review process concerning the Project, it is necessary for the City to
access the services of outside legal, environmental, planning, and other experts for the
Project (collectively, the "Consultants").
D. As a condition to the City's completion 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 Project review process in the manner and amounts set
forth in this Agreement. The Applicant's reimbursement of Consultant costs and
expenses under this Agreement will ensure that the City has the necessary resources to
diligently and efficiently process the Project.
TERMS
NOW, THEREFORE, in consideration of the following mutual promises and
agreements, City and Applicant agree as follows:
1 Incorporation of Recitals. The Parties agree that the Recitals
constitute the factual basis upon which they have entered into this Agreement. The
Parties 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. City to Retain Consultants. As a necessary and indispensable part
of its fact finding process relating to the review of the Applicant's proposed Project, the
City shall retain the services of Consultants as set forth in Section 4 to provide advice
as the City may deem necessary in its reasonable discretion. The contemplated
general scopes of work of the Consultants for the Project is attached hereto as Exhibit
A, but the City reserves the right, in its reasonable discretion, to amend the scope of
work (pursuant to Section 5) as it deems necessary and appropriate to the City's proper
review and consideration of the Project. The City will provide Applicant with written
notice of any amended scope of work as set forth in Section 5.
2.1 No Applicant/Consultant Privity. The Applicant agrees that,
notwithstanding the Applicant's reimbursement obligations under this Agreement,
Consultants shall be engaged as contractors exclusively by the City and not by the
Applicant. 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 Applicant. The Applicant agrees that it shall have no claim to, nor shall it 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.
3. Applicant to Cooperate with Consultants. The Applicant agrees to
cooperate in good faith with the Consultants. The Applicant agrees that it will instruct its
agents, employees, consultants, contractors, and attorneys to reasonably cooperate
with the Consultants and to provide all necessary documents or information reasonably
requested of them by the City and/or the Consultants; provided, however, that the
foregoing shall not require the disclosure of any documents or information of the
Applicant which is proprietary, confidential, a trade secret, or subject to attorney-client
communication, attorney work product or other legal privilege. Notwithstanding the
foregoing, City acknowledges that certain information provided by Applicant may be
sensitive or proprietary in nature, and, to the extent allowed by law (including, without
limitation, the Public Records Act), City agrees to keep such information confidential.
4. City's Selection of Consultants. The City has retained the following
as Consultants pursuant to this Agreement, but may retain additional consultants or
sub-consultants pursuant to the terms of this Agreement: (1) MIG (Environmental); and
(2) Best Best & Krieger LLP (Legal Services). The City will provide Applicant with
written notice of any additional consultants or sub-consultants engaged within ten (10)
days of that engagement; provided, however, any engagement that would result in a
Change in Scope (defined in Section 5) shall be subject to the terms and conditions
of Section 5.
5. Applicant's Reimbursement of Fees, Costs and Expenditures. The
Applicant shall reimburse the City for one hundred percent (100%) of the actual fees,
costs and other expenditures reasonably incurred by the City relative to the Consultant
costs (the "Costs"). Applicant further understands and agrees that Costs are based
upon the rates provided by Consultants attached hereto as Exhibit B.
5.1 Estimated Costs; Deposit Account: The City has preliminarily
reviewed the scope of work required and has estimated the aggregate Costs for all
consultants to be approximately twenty-four thousand and one hundred fifty dollars
($24,150.00) (the "Estimated Costs"). Within forty-five (45) calendar days after the
execution of this Agreement, the Applicant shall submit a deposit in the amount of
fourteen thousand one hundred and fifty dollars ($14,150.00) to cover the remaining
Estimated Costs since the applicant has already deposited ten thousand dollars
($10,000) on March 5, 2019 (Exhibit “C”), which amount the City shall separately
account for in a Project deposit account (the "Deposit Account").
5.2 Replenishment of Deposit: As the Consultants invoice the
City for fees, costs, and expenditures associated with the Project, the City may draw
upon the Deposit Account to make the required payments. At any time that the balance
in the Deposit Account drops below five thousand Dollars ($5,000.00), the City may
make demand in writing on Applicant to replenish the Deposit Account to ten thousand
Dollars ($10,000.00), and Applicant shall submit the required amount of funds to City
within forty-five (45) calendar days after having received the City’s written request. In
the event that Applicant fails to make any required deposit within such forty-five (45) day
period, then the City may issue Applicant a written thirty (30) day notice to cure, and if
Applicant does not cure within thirty (30) days of receiving such notice to cure, City shall
have the right to consider the Project applications as withdrawn and cease processing
such applications.
5.3 Excess Costs: The City shall not exceed the Estimated
Costs without consulting with Applicant regarding the need for additional services that
cause the Costs to exceed the Estimated Costs (the "Excess Costs"). The City shall
consult with the Applicant prior to (a) amending any scope of services to be provided by
the Consultants or retaining any additional consultant or sub-consultant that would be
reasonably expected to result in Excess Costs or (b) authorizing any work by an existing
Consultant reasonably expected to cause that Consultant’s fees to exceed the sum set
forth for such Consultant in Exhibit B (each a “Change in Scope”).
The Applicant's obligation to reimburse the City for the Excess Costs shall
be contingent upon the City providing Applicant with written notice of the Change in
Scope and the estimated Excess Cost thereof at least ten (10) days prior to the
commencement of the work to be performed under such Change in Scope. After the
period set forth in the preceding sentence expires, if the City has not received an
objection from Applicant, Applicant shall be obligated to pay the Excess Costs in the
same manner as the Estimated Costs provided above, including, but not limited to,
replenishing the Deposit Account.
If the Applicant notifies the City that Applicant disagrees with the City's
incurring of Excess Costs, then the Applicant's sole and exclusive remedy will be to
terminate this Agreement pursuant to Section 8 of this Agreement, subject to the
Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the
date of termination, whether or not yet paid by the City to any Consultants.
5.4 Records: The City shall maintain accurate records of
invoices received from, and payments made to, the Consultants resulting from the
Project, and will provide an accounting of payments made within thirty (30) days after
request by Applicant. In the event that excess funds remain in the Deposit Account
upon conclusion of the Project, or termination as defined in Sections 6, 7 and 8, and
after all final payments to the Consultants have been made, the City agrees to refund
that excess amount, if any, to Applicant within fifteen (15) days of final payment to the
Consultants. Alternatively, if the Costs of the services of the Consultants exceed the
Estimated Costs and Excess Costs, if any, then Applicant shall remain obligated to pay
for all such Costs. Applicant shall pay any such amount within fifteen (15) days of
demand for payment by City.
6. Discretionary Approvals. Applicant and City understand and agree
that Applicant’s applications to City concerning the Property are subject to the approval,
conditional approval or disapproval of the Planning Commission and/or City Council of
City. Further, Applicant and City understand and agree that some or all of the
applications may require findings (including, without limitation, environmental
determinations under CEQA) to be made by those legislative bodies, in some instances
following duly noticed public hearings. Nothing set forth in this Agreement shall be
deemed to require approval or conditional approval of any or all of such land use and
other applications by those legislative bodies, notwithstanding Applicant's undertaking
and completion of its obligations under this Agreement.
7. Term. The term of this Agreement shall commence on the date
that this Agreement is fully executed by the Parties, and shall terminate on the earlier of
the date that: (a) all services required for the Project by Consultants have been
completed to the City's reasonable satisfaction and the Applicant has satisfied all of its
obligations under this Agreement; or (b) Applicant withdraws the application(s). For
purposes of this Section 7, Applicant's obligations shall include, but shall not be limited
to, its obligation to reimburse the City for Estimated Costs and Excess Costs in
accordance with Section 5. The Applicant's obligation to reimburse the City as provided
in this Agreement shall survive the termination of this Agreement.
8. Early Termination.
8.1 By City. The City may, in its reasonable discretion,
terminate this Agreement prior to the term set forth in Section 6, without cost or liability
to the City, if Applicant: (a) fails to satisfy any obligation of this Agreement within any
applicable cure period; or (b) fails to reasonably prosecute its application(s) for the
Project; provided that, prior to such termination, City must provide Applicant with a thirty
(30) day written notice of such termination, which notice shall contain enough
information to reasonably inform Applicant of: (x) the reason for such termination; and
(y) what must be done to effectuate a cure, and Applicant must fail to cure within such
thirty (30) day period, or, in the event of a cure that reasonably takes longer than thirty
(30) days to complete, fails to commence and diligently prosecute such cure within such
thirty (30) day period. In the event of such termination under this Section 8.1, Applicant
shall be deemed to have withdrawn its application(s) for the Project.
8.2 By Applicant. The Applicant may, in its sole discretion,
terminate this Agreement prior to the end of the term set forth in Section 6, upon thirty
(30) days' prior written notice to the City; provided, however, that Applicant's right to so
terminate this Agreement is expressly contingent upon Applicant satisfying both of the
following: (a) Applicant shall give City written notice withdrawing its application(s) for the
Project; and (b) Applicant shall satisfy all of its obligations under this Agreement up
through the proposed effective date of termination. For purposes of this Section 8.2,
Applicant's obligations shall include, but shall not be limited to, its obligation to
reimburse the City for Estimated Costs and Excess Costs in accordance with Section 5.
8.3 Notification: Within two (2) business days following either the City's
decision to terminate this Agreement or the City's receipt of written notice indicating the
Applicant's decision to terminate this Agreement, the City shall notify all Consultants
and instruct them to cease work on the Project. Consultants shall also be instructed to
bill the City for any services completed prior to the date of termination.
9. Assignability. This Agreement may not be assigned by either Party
without the prior and express written consent of the other Party, which consent shall not
be unreasonably withheld, conditioned or delayed. In determining whether to approve a
request by the Applicant to assign this Agreement, the City may consider, among other
things, the proposed assignee's financial status and commitment to the Project. 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. Notwithstanding the foregoing, Applicant may freely assign this Agreement to
any purchaser of the entire Property or to an affiliate of Applicant’s.
10. No Oral Modifications. This Agreement represents the entire
understanding of the City and the Applicant, 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 by a writing signed by both the
authorized representatives of both the City and the Applicant. All modifications to this
Agreement must be approved by the City Manager of the City of Azusa.
11. Binding Upon Successors. This Agreement and each of its terms
shall be binding upon the City, the Applicant and their respective officers, elected
officials, employees, agents, contractors, and permitted successors and assigns.
12. Legal Challenges. Nothing herein shall be construed to require City
to defend any third party claims and suits challenging any action taken by the City with
regard to any procedural or substantive aspect of the City’s approval of development of
the Property, any required entitlements, the environmental process, or the proposed
Project. The Applicant may, however, in its sole and absolute discretion, appear as a
real party in interest in any such third party action or proceeding, and in such event, it
and the City shall defend such action or proceeding and the Applicant shall be
responsible and reimburse the City for whatever legal fees and expert or other costs, in
their entirety, including actual attorneys' fees, which may be incurred by the City in
defense of such action or proceeding. This City shall have the absolute right to retain
such legal counsel as the City deems necessary and appropriate, and the Applicant
shall reimburse the City for any and all attorneys' fees and expert or other costs incurred
by the City as a result of such third party action or proceeding. Applicant may, at any
time, notify City in writing of its decision to terminate such reimbursement obligation
and, thereafter, the City may choose, in its sole discretion, to defend or not defend such
third party action or proceeding. In the event that the City decides not to continue the
defense of such third party action or proceeding, Applicant shall be obligated to
reimburse City for any and all costs, fees, penalties or damages associated with
dismissing the action or proceeding. In the event that the City decides to continue the
defense of such third party action or proceeding, Applicant shall have no further
obligation to reimburse City for its attorney fees and expert or other costs.
13. Attorneys' Fees. In the event that any action or proceeding,
including arbitration, is commenced by either the City or the Applicant 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.
14. Jurisdiction and Venue. This Agreement is executed and is to be
performed in Azusa, Los Angeles County, California. Any action or proceeding brought
relative to this Agreement shall be heard in the appropriate court in the County of Los
Angeles, California. The City and the Applicant each consent to the personal
jurisdiction of the court in any such action or proceeding.
15. Severability. If any term or provision of this Agreement is found to
be invalid or unenforceable, the City and the Applicant 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.
16. 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 terms and language of each Section. References to “Sections” are to
sections of this Agreement, unless otherwise specifically provided.
17. Representations of Authority. Each Party 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.
18. Exhibits. All references in this Agreement to “Exhibits” shall be
construed as though the words “hereby made a part hereof and incorporated herein by
this reference” were, in each case, appended thereto.
19. Notices. Notices required under this Agreement shall be sent to the
following:
If to City: If to the Applicant:
City Manager William Tsang
City of Azusa Gladstone Land Company
213 E. Foothill Blvd. 1108 W. Valley Blvd., #6207
Azusa, CA 91702 Alhambra, CA 91803
Notices given pursuant to this Agreement shall be deemed received as follows:
(1) If sent by United States Mail - on the date of receipt by the
receiving party.
(2) If by facsimile - upon transmission and actual receipt by the
receiving party.
(3) If by express courier service or hand delivery - on the date of
receipt by the receiving party.
The addresses for notices set forth in this Section 19 may be changed upon
written notice of such change to either the City or the Applicant, as appropriate.
[SIGNATURES ON FOLLOWING PAGES]
SIGNATURE PAGE TO
REIMBURSEMENT AGREEMENT
CITY OF AZUSA
a California municipal corporation
By: ____________________________________
City Manager
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
________________________________
City Attorney
Gladstone Land Company,
a Limited Liability Company
By:_____________________________
William Tsang, Owner
EXHIBIT A
SCOPE OF SERVICE FOR CONSULTANTS
MIG (ENVIRONMENTAL)
Any and all environmental and traffic engineering services needed for the Project,
including CEQA compliance, and all needed experts or sub-consultants as described in
the Scope of Work submitted by MIG (See Exhibit A-1)
BEST BEST & KRIEGER LLP (LEGAL)
Any and all legal services as needed for the Project, including, but not limited to, review
of the environmental documents, permits, and related documents and any City approval
documents needed for the Project.
OTHER CONSULTANTS
Any and all other consultants determined by the City to be reasonably necessary for its
review and processing of the Project application(s).
EXHIBIT B
ESTIMATES COSTS FOR EACH CONSULTANT
MIG (ENVIRONMENTAL)
MIG’s current published rates for a total estimated amount of $24,150.00.
BEST BEST & KRIEGER LLP (LEGAL)
Standard private rates per attorney (minus 10% discount) for a total estimated amount
to be determined.
OTHER CONSULTANTS
To be determined.
PLANNING AND ENVIRONMENTAL SERVICES
April 3. 2019
Manual Muñoz, Senior Planner
Planning Division
City of Azusa
213 E. Foothill Boulevard
Azusa, CA 91702
Re: Revised Proposal to Provide Environmental Services for a 13-Lot Residential
Subdivision, City of Azusa
Mr. Muñoz:
We are pleased to submit this revised proposal to prepare a Categorical Exemption (CE) and
associated technical analyses for a residential subdivision that would accommodate 13 standard
homes and 8 Accessory Dwelling Units on 13 single-family lots. The project site is located on
approximately 2.29 acres located at 137 North Barbara Avenue, directly south of the Mountain
View Elementary School. The budget of $18,450 presented herein includes preparation of draft
and final technical reports and the CE document including a brief 2-3-page summary of the
findings of the technical reports which would be provided to support the CE.
We have assembled a strong team of environmental planners and technical experts well-versed
in the environmental impacts associated with residential infill projects. MIG has also has a
longstanding relationship with the City of Azusa, including contract planning services and
providing planning and environmental service on the Dhammakaya Specific Plan, the California
Grand Village Azusa Greens Specific Plan, and the Trammel Crow Industrial project. Most
recently MIG staff has been helping the City with application processing and environmental review
for the proposed Consolidated Ready-Mix batch plant which is located near this project.
I will be the principal-in-charge of this project and Bob Prasse, our Director of Environmental
Services, will be the project manager. We will work closely with the City to ensure a thorough
and efficient environmental review process. If you have any questions or need additional
information, please contact Bob Prasse or me at our Riverside office at 951-787-9222. Thank you
for the opportunity to assist in the preparation of
environmental documentation for your project.
Regards,
Pamela Steele
Principal
Approved:
Signature
Name
Title
Date
Environmental Services for a 13 Lot Residential Subdivision Revised April 3, 2019
City of Azusa, California
2
SCOPE OF WORK
PROJECT UNDERSTANDING
We understand that the City of Azusa is seeking a professional environmental consulting firm to
prepare an Initial Study/Mitigated Negative Declaration (IS/MND) and associated technical
reports for a 13-lot single-family subdivision located at 137 N. Barbara Avenue (APN 8615-019-
037). In addition, the applicant is requesting Accessory Dwelling Units (ADU’s) on 8 of the 13 lots.
The proposed project does not require a General Plan Amendment or a Zone Change. The City
has determined that the project would likely qualify for a Categorical Exemption (Class 32 – Urban
Infill). The City, as the Lead Agency under CEQA, has the discretion to decide whether the project
will be processed as an IS/MND or a Categorical Exemption.
The City has also requested that the following technical analyses be prepared:
1. Air Quality Analysis (construction only)
2. Greenhouse Gas emissions Analysis
3. Noise Analysis (construction and operation)
4. Trip Generation Memorandum
These studies would all be prepared by MIG with the exception of the Trip Generation
Memorandum which would be prepared by Ganddini Group as our subconsultant.
Also, based on our staff discussion, a Cultural Study and/or records search will not be required
and a Phase I Environmental Site Assessment (ESA) and a Preliminary Water Quality
Management Plan will be provided by the applicant for our use in preparing the CE.
SCOPE OF WORK
Task 1 – Initiate Project, Data Collection
A project initiation/kick-off meeting (or teleconference) will be convened with City staff and the
applicant to review the scope of work with respect to verification of the project description, project
tasks, objectives, and work products, including required studies. This meeting will also be an
opportunity to discuss key project issues and concerns and establish communication protocols.
During or prior to this meeting, it is anticipated that all project documents would be provided to
MIG. As part of this task, MIG will also visit the project site to take site photographs and record
existing conditions as a baseline for environmental analysis.
Task 2 – Technical Studies
In order to thoroughly analyze potential project impacts for certain issues, technical analyses will
be prepared. These studies will be used to satisfy the requirements of CEQA, will address all
CEQA-required assessments, and will be supported with references and appendices (e.g., model
outputs, archival information, and findings from field reviews). MIG will prepare one administrative
draft of each technical report for review by the City prior to finalizing the reports for use in the
CEQA review of the project.
The findings and conclusions of each study would be used to support the preparation of the CE
(See Task 3, below).
Environmental Services for a 13 Lot Residential Subdivision Revised April 3, 2019
City of Azusa, California
3
Task 2A – Air Quality and Greenhouse Gases (GHG) Memorandum
MIG will prepare a concise technical memorandum that evaluates the proposed project’s potential
to generate short-term (i.e., construction) and long-term (i.e., operational) emissions of criteria air
pollutants (e.g., particulate matter or PM), fugitive dust, toxic air contaminants (TACs), and
greenhouse gas (GHG). MIG proposes to use the California Emissions Estimator Model
(CalEEMod, Version 2016.3.2) to estimate the net increase in emissions generated by the
construction and operation of the proposed project. The resulting emissions estimates would be
compared to regional CEQA significance thresholds maintained by the SCAQMD. The proposed
project’s emissions would also be compared to the SCAQMD’s Localized Significance Thresholds
(LSTs). The SCAQMD’s LSTs help public agencies analyze the project-related effects of
pollutants on sensitive receptors (which border the site to the north, east, and south-east).
Due to the small size and nature of the project (13 residential units plus 8 ADU’s that are not
anticipated to require substantial grading or earthmoving, and which would likely be constructed
in less than one year), MIG is not proposing to prepare a quantitative construction health risk
assessment (HRA) for the project; however, we have included the preparation of a construction
HRA as an optional task should the City or the adjacent Mountain View Elementary School
request this analysis. If the quantitative construction HRA is not requested, MIG would prepare a
concise, qualitative analysis of the proposed project’s potential construction-related health risk
impacts. This qualitative analysis would evaluate whether project-specific factors such as project
size, construction schedule, local meteorology, and distance and direction of sensitive receptor
locations make it likely or unlikely for the proposed construction activities to result in potentially
significant adverse health risks at sensitive receptor locations. The qualitative analysis would
assume the project would incorporate standard best management practices for reducing
construction emissions, such as use of electrical hookups instead of generators, limitations on
diesel idling, and the use construction equipment meeting U.S. EPA Tier 3 or Tier 4 standards as
much as feasible.
Task 2B – Noise Study
MIG will prepare a clear and concise noise and vibration report that would:
• Describe the existing noise and vibration environment in the project vicinity and applicable
City regulations, including Municipal Code and General Plan policies, related to noise;
• Quantify potential construction noise and vibration levels at sensitive receptor locations,
including nearby residences and the adjacent Mountain View Elementary School;
• Evaluate potential operational noise levels resulting from project noise sources, including
project-related increases in traffic on local roadways.
MIG would conduct long-term (i.e., 24 hours) noise monitoring at two locations to adequately
describe the existing noise environment in the project area/sensitive receptor locations and
evaluate project compatibility with existing noise levels. The noise analysis will identify typical
construction equipment sound levels, quantify peak and typical construction activity noise levels,
and, if necessary, identify best management practices or mitigation measures that would reduce
the magnitude of potential construction noise impacts to less than significance. MIG also
anticipates the surrounding industrial lands may generate noise levels that require enhanced site
Environmental Services for a 13 Lot Residential Subdivision Revised April 3, 2019
City of Azusa, California
4
design, barrier attenuation, and building design features to ensure the project is able to meet
interior noise levels specified by the California Building Code.
Task 2C – Traffic Generation Memorandum
The scope of services anticipated to be required for the trip generation analysis of the project
includes (1) discussing the proposed development and project site plan with the City; (2)
conducting a field survey; (3) documenting existing traffic conditions; (4) determining project trip
generation based upon the Institute of Transportation Engineers, Trip Generation Manual, 10th
Edition, 2017; (5) preparing a trip generation comparison between the previous land use with the
proposed land use; (6) examining internal circulation; and (7) preparing a technical memorandum
that is signed and stamped by a Registered Engineer in the State of California.
Task 3 – Class 32 Categorical Exemption Analysis
Following the completion of the technical analyses under Task 2, MIG will review the project with
respect to the criteria for a Class 32 Categorical Exemption (CE). Class 32 exemptions apply to
urban infill projects, less than 5 acres in size, that are consistent with zoning and general plan
requirements, and that will not cause significant air quality, water quality, noise or traffic impacts.
Based on the analysis in the technical studies and other information, MIG will verify whether the
proposed project would qualify for a Class 32 Categorical Exemption. Our analysis, conclusions,
and recommendations would be documented in the CE and supported by a brief (2-3 page)
memorandum summarizing the findings of the technical studies and providing the rationale for a
CE for the project. The CE would then be provided to City Staff for review and comment. MIG
would then, as necessary, revise and finalize the CE.
This task does not include the preparation of an Initial Study.
Task 4 – Meetings and Hearings
This task assumes MIG’s participation in one internal meeting with the City and attendance at one
public hearing for the adoption of the CE. The meetings will be attended by lead MIG
environmental staff. Budget for this task does not include the project kick-off meeting which is
covered under Task 1.
Task 5 – Project Management
MIG recognizes that frequent, immediate, and clear communication with the project team is
essential to keep the environmental review phase of the project on track. MIG has allocated
budget for communication and coordination with the City and other project team members to
ensure we can communicate clearly and effectively. Additionally, this budget covers contractual
matters, case administration, and our quality control review process.
Optional Task 6 – Construction Health Risk Assessment
If requested, MIG would prepare a Construction HRA Report that clearly and concisely evaluates
the proposed project’s potential to expose sensitive receptors to construction emissions and the
potential adverse health risks associated with such emissions. The quantitative construction HRA
Environmental Services for a 13 Lot Residential Subdivision Revised April 3, 2019
City of Azusa, California
5
would be prepared in accordance with the guidance and recommendations contained in the
SCAQMD’s CEQA Air Quality Handbook, SCAQMD’s Health Risk Assessment Guidance for
Analyzing Cancer Risks from Mobile Source Diesel Emissions, and the California Office of
Environmental Health Hazard Assessment’s (OEHHA) Air Toxics Hot Spots Program Guidance
Manual. As a matter of due diligence, MIG would also contact SCAQMD for supplemental, project-
specific guidance regarding the project HRA. The HRA would identify the carcinogenic and non-
carcinogenic health risks at sensitive receptor locations near the proposed project, consistent with
SCAQMD guidance. If necessary, feasible mitigation measures and construction best
management practices would be identified to reduce construction emissions to levels below
SCAQMD-recommended risk thresholds, such as the use of construction equipment meeting Tier
3 and/or Tier 4 standards, phasing of activities, or other equipment and design considerations.
Environmental Services for a 13 Lot Residential Subdivision Revised April 3, 2019
City of Azusa, California
6
BUDGET
The base cost to prepare the technical reports and CE as required by the City of Azusa is
estimated to be $18,450. Expenses will be billed at cost plus ten percent. Invoicing will occur on
a monthly basis based on time and materials. Payments are due and payable within 30 days of
receipt of invoice to: MIG, 1500 Iowa Avenue, Suite 110, Riverside, California 92507. As the
project progresses, if there is a change in scope or additional time and efforts are needed, an
amendment to the budget will be requested before proceeding. A by-task summary budget is
provided below.
Task Cost
1. Initiate Project/Data Collection $1,500
2. Technical Analyses
2A Air Quality (construction only) & GHG
2B Noise
2C Traffic Generation Memorandum
$11,150
$2,200
$6,400
$2,550
3. Prepare Administrative Draft IS/MND $2,500
4. Meetings and Hearings $1,500
5. Project Management $1,800
Labor Cost Subtotal $18,450
Expenses $300
GRAND TOTAL (labor + expenses) $18,750
Optional Task 6 Construction Health Risk Assessment $5,400
GRAND TOTAL WITH OPTIONAL TASK $24,150
Environmental Services for a 13 Lot Residential Subdivision Revised April 3, 2019
City of Azusa, California
7
SCHEDULE
MITIGATED NEGATIVE DECLARATION SCHEDULE
Based on the scope of work, we anticipate that all of the technical analyses would take
approximately 5 weeks total to complete. It is estimated that the CE and supporting summary
could then be completed and then finalized by the City within 2 weeks of the completion of the
technical studies.
REIMBURSEMENT AGREEMENT
Between
CITY OF AZUSA
a California municipal corporation
and
“APPLICANT”
A “TYPE OF ORGANIZATION”
Attachment 3
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (this "Agreement") is made this xrd day of xxxx, 20xx,
by and between the City of Azusa, a California municipal corporation (the "City"), and
“APPLICANT”, a “TYPE OF ORGANIZATION” (the "Applicant" and together with the
City, occasionally, each a “Party” and collectively the “Parties”).
RECITALS
This Agreement is made with respect to the following facts :
A. The Applicant is the lessee of real property generally known as
“PROJECT ADDRESS” (the "Property") located within the City of Azusa, County of Los
Angeles, California.
B. The Applicant is requesting a “PROJECT DESCRIPTION” at the Property
(the "Project"). As part of the Project, the Applicant will submit applications for
discretionary approvals and the City will consider such applications and prepare the
appropriate environmental documentation required pursuant to the California
Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (“CEQA”).
C. To provide the City with the needed expertise and information necessary
for the City's review process concerning the Project, it is necessary for the City to
access the services of outside legal, environmental, planning, and other experts for the
Project (collectively, the "Consultants").
D. As a condition to the City's completion 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 Project review process in the manner and amounts set
forth in this Agreement. The Applicant's reimbursement of Consultant costs and
expenses under this Agreement will ensure that the City has the necessary resources to
diligently and efficiently process the Project.
TERMS
NOW, THEREFORE, in consideration of the following mutual promises and
agreements, City and Applicant agree as follows:
1 Incorporation of Recitals. The Parties agree that the Recitals
constitute the factual basis upon which they have entered into this Agreement. The
Parties 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. City to Retain Consultants. As a necessary and indispensable part
of its fact finding process relating to the review of the Applicant's proposed Project, the
City shall retain the services of Consultants as set forth in Section 4 to provide advice
as the City may deem necessary in its reasonable discretion. The contemplated
general scopes of work of the Consultants for the Project is attached hereto as Exhibit
A, but the City reserves the right, in its reasonable discretion, to amend the scope of
work (pursuant to Section 5) as it deems necessary and appropriate to the City's proper
review and consideration of the Project. The City will provide Applicant with written
notice of any amended scope of work as set forth in Section 5.
2.1 No Applicant/Consultant Privity. The Applicant agrees that,
notwithstanding the Applicant's reimbursement obligations under this Agreement,
Consultants shall be engaged as contractors exclusively by the City and not by the
Applicant. 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 Applicant. The Applicant agrees that it shall have no claim to, nor shall it 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.
3. Applicant to Cooperate with Consultants. The Applicant agrees to
cooperate in good faith with the Consultants. The Applicant agrees that it will instruct its
agents, employees, consultants, contractors, and attorneys to reasonably cooperate
with the Consultants and to provide all necessary documents or information reasonably
requested of them by the City and/or the Consultants; provided, however, that the
foregoing shall not require the disclosure of any documents or information of the
Applicant which is proprietary, confidential, a trade secret, or subject to attorney-client
communication, attorney work product or other legal privilege. Notwithstanding the
foregoing, City acknowledges that certain information provided by Applicant may be
sensitive or proprietary in nature, and, to the extent allowed by law (including, without
limitation, the Public Records Act), City agrees to keep such information confidential.
4. City's Selection of Consultants. The City has retained the following
as Consultants pursuant to this Agreement, but may retain additional consultants or
sub-consultants pursuant to the terms of this Agreement: “LIST CONSULTANTS”. The
City will provide Applicant with written notice of any additional consultants or sub -
consultants engaged within ten (10) days of that engagement; provided, however, any
engagement that would result in a Change in Scope (defined in Section 5) shall be
subject to the terms and conditions of Section 5.
5. Applicant's Reimbursement of Fees, Costs and Expenditures . The
Applicant shall reimburse the City for one hundred percent (100%) of the actual fees,
costs and other expenditures reasonably incurred by the City relative to the Consultant
costs (the "Costs"). Applicant further understands and agrees that Costs are based
upon the rates provided by Consultants attached hereto as Exhibit B.
5.1 Estimated Costs; Deposit Account: The City has preliminarily
reviewed the scope of work required and has estimated the aggregate Costs for all
consultants to be approximately “WRITTEN AMOUNT” ($xxx.xx) (the "Estimated
Costs"). Notwithstanding the details provided for the Estimated Costs, the Estimated
Costs also include Costs expended by the City for the Project that were incurred prior to
the submittal of a formal application, and a portion of the Estimated Costs will be used
to reimburse the City for its previous Costs. Within forty-five (45) calendar days after
the execution of this Agreement, the Applicant shall submit a deposit in the amount of
twenty thousand Dollars ($20,000.00) to cover the Estimated Costs, which amount the
City shall separately account for in a Project deposit account (the "Deposit Account").
5.2 Replenishment of Deposit: As the Consultants invoice the
City for fees, costs, and expenditures associated with the Project, the City may draw
upon the Deposit Account to make the required payments. At any time that the balance
in the Deposit Account drops below five thousand Dollars ($5,000.00), the City may
make demand in writing on Applicant to replenish the Deposit Account to twenty
thousand Dollars ($20,000.00), and Applicant shall submit the required amount of funds
to City within forty-five (45) calendar days after having received the City’s written
request. In the event that Applicant fails to make any required deposit within such forty-
five (45) day period, then the City may issue Applicant a written thirty (30) day notice to
cure, and if Applicant does not cure within thirty (30) days of receiving such notice to
cure, City shall have the right to consider the Project applications as withdrawn and
cease processing such applications.
5.3 Excess Costs: The City shall not exceed the Estimated
Costs without consulting with Applicant regarding the need for additional services that
cause the Costs to exceed the Estimated Costs (the "Excess Costs"). The City shall
consult with the Applicant prior to (a) amending any scope of services to be provided by
the Consultants or retaining any additional consultant or sub-consultant that would be
reasonably expected to result in Excess Costs or (b) authorizing any work by an existing
Consultant reasonably expected to cause that Consultant’s fees to exceed the sum set
forth for such Consultant in Exhibit B (each a “Change in Scope”).
The Applicant's obligation to reimburse the City for the Excess Cos ts shall
be contingent upon the City providing Applicant with written notice of the Change in
Scope and the estimated Excess Cost thereof at least ten (10) days prior to the
commencement of the work to be performed under such Change in Scope. After the
period set forth in the preceding sentence expires, if the City has not received an
objection from Applicant, Applicant shall be obligated to pay the Excess Costs in the
same manner as the Estimated Costs provided above, including, but not limited to,
replenishing the Deposit Account.
If the Applicant notifies the City that Applicant disagrees with the City's
incurring of Excess Costs, then the Applicant's sole and exclusive remedy will be to
terminate this Agreement pursuant to Section 8 of this Agreement, subject to the
Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the
date of termination, whether or not yet paid by the City to any Consultants.
5.4 Records: The City shall maintain accurate records of
invoices received from, and payments made to, the Consultants resulting from the
Project, and will provide an accounting of payments made within thirty (30) days after
request by Applicant. In the event that excess funds remain in the Deposit Account
upon conclusion of the Project, or termination as defined in Sections 6, 7 and 8, and
after all final payments to the Consultants have been made, the City agrees to refund
that excess amount, if any, to Applicant within fifteen (15) days of final paym ent to the
Consultants. Alternatively, if the Costs of the services of the Consultants exceed the
Estimated Costs and Excess Costs, if any, then Applicant shall remain obligated to pay
for all such Costs. Applicant shall pay any such amount within fifteen (15) days of
demand for payment by City.
6. Discretionary Approvals. Applicant and City understand and agree
that Applicant’s applications to City concerning the Property are subject to the approval,
conditional approval or disapproval of the Planning Commission and/or City Council of
City. Further, Applicant and City understand and agree that some or all of the
applications may require findings (including, without limitation, environmental
determinations under CEQA) to be made by those legislative bodies, in some instances
following duly noticed public hearings. Nothing set forth in this Agreement shall be
deemed to require approval or conditional approval of any or all of such land use and
other applications by those legislative bodies, notwithstanding Applicant's undertaking
and completion of its obligations under this Agreement.
7. Term. The term of this Agreement shall commence on the date
that this Agreement is fully executed by the Parties, and shall terminate on the earlier of
the date that: (a) all services required for the Project by Consultants have been
completed to the City's reasonable satisfaction and the Applican t has satisfied all of its
obligations under this Agreement; or (b) Applicant withdraws the application(s). For
purposes of this Section 7, Applicant's obligations shall include, but shall not be limited
to, its obligation to reimburse the City for Estima ted Costs and Excess Costs in
accordance with Section 5. The Applicant's obligation to reimburse the City as provided
in this Agreement shall survive the termination of this Agreement.
8. Early Termination.
8.1 By City. The City may, in its reasonable discretion,
terminate this Agreement prior to the term set forth in Section 6, without cost or liability
to the City, if Applicant: (a) fails to satisfy any obligation of this Agreement within any
applicable cure period; or (b) fails to reasonably prosecute its application(s) for the
Project; provided that, prior to such termination, City must provide Applicant with a thirty
(30) day written notice of such termination, which notice shall contain enough
information to reasonably inform Applicant of: (x) the reason for such termination; and
(y) what must be done to effectuate a cure, and Applicant must fail to cure within such
thirty (30) day period, or, in the event of a cure that reasonably takes longer than thirty
(30) days to complete, fails to commence and diligently prosecute such cure within such
thirty (30) day period. In the event of such termination under this Section 8.1, Applicant
shall be deemed to have withdrawn its application(s) for the Project.
8.2 By Applicant. The Applicant may, in its sole discretion,
terminate this Agreement prior to the end of the term set forth in Section 6, upon thirty
(30) days' prior written notice to the City; provided, however, that Applicant's right to so
terminate this Agreement is expressly contingent upon Applicant satisfying both of the
following: (a) Applicant shall give City written notice withdrawing its applic ation(s) for the
Project; and (b) Applicant shall satisfy all of its obligations under this Agreement up
through the proposed effective date of termination. For purposes of this Section 8.2,
Applicant's obligations shall include, but shall not be limited to, its obligation to
reimburse the City for Estimated Costs and Excess Costs in accordance with Section 5.
8.3 Notification: Within two (2) business days following either
the City's decision to terminate this Agreement or the City's receipt of written notice
indicating the Applicant's decision to terminate this Agreement, the City shall notify all
Consultants and instruct them to cease wo rk on the Project. Consultants shall also be
instructed to bill the City for any services completed prior to the date of termination.
9. Assignability. This Agreement may not be assigned by either Party
without the prior and express written co nsent of the other Party, which consent shall not
be unreasonably withheld, conditioned or delayed. In determining whether to approve a
request by the Applicant to assign this Agreement, the City may consider, among other
things, the proposed assignee's financial status and commitment to the Project. 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. Notwithstanding the foregoing, Applicant may freely assign this Agreement to
any purchaser of the entire Property or to an affiliate of Applicant’s.
10. No Oral Modifications. This Agreement represents the entire
understanding of the City and the Applicant, 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 by a writing signed by both the
authorized representatives of both the City and the Applicant. All modifications to this
Agreement must be approved by the City Manager of the City of Azusa.
11. Binding Upon Successors. This Agreement and each of its terms
shall be binding upon the City, the Applicant and their respective officers, elected
officials, employees, agents, contractors, and permitted successors and assigns.
12. Legal Challenges. Nothing herein shall be construed to require City
to defend any third party claims and suits challenging any action taken by the City with
regard to any procedural or substantive aspect of the City’s approval of development of
the Property, any required entitlements, the environmental process, or the proposed
Project. The Applicant may, however, in its sole and absolute discretion, appear as a
real party in interest in any such third party action or proceeding, and in such event, it
and the City shall defend such action or proceeding and the Applicant shall be
responsible and reimburse the City for whatever legal fees and expert or other costs, in
their entirety, including actual attorneys' fees, which may be incurred by the City in
defense of such action or proceeding. This City shall have the absolute right to retain
such legal counsel as the City deems necessary and appropriate, and the Applicant
shall reimburse the City for any and all attorneys' fees and expert or other costs incurred
by the City as a result of such third party action or proceeding. Applicant may, at any
time, notify City in writing of its decision to terminate such reimbursement obligation
and, thereafter, the City may choose, in its sole discretion, to defend or not defend such
third party action or proceeding. In the event that the City decides not to continue the
defense of such third party action or proceeding, Applicant shall be obligated to
reimburse City for any and all costs, fees, penalties or damages associated with
dismissing the action or proceeding. In the event that the City decides to continue the
defense of such third party action or proceeding, Applicant shall have no further
obligation to reimburse City for its attorney fees and expert or other costs.
13. Attorneys' Fees. In the event that any action or proceeding,
including arbitration, is commenced by either the City or the Applicant 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.
14. Jurisdiction and Venue. This Agreement is executed and is to be
performed in Azusa, Los Angeles County, California. Any action or proceeding brought
relative to this Agreement shall be heard in the appropriate court in the County of Los
Angeles, California. The City and the Applicant each consent to the personal
jurisdiction of the court in any such action or proceeding.
15. Severability. If any term or provision of this Agreement is found to
be invalid or unenforceable, the City and the Applicant 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.
16. 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 terms and language of each Section. References to “Sections” are to
sections of this Agreement, unless otherwise specifically provided.
17. Representations of Authority. Each Party 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 th is
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.
18. Exhibits. All references in this Agreement to “Exhibits” shall be
construed as though the words “hereby made a part hereof and incorporated herein by
this reference” were, in each case, appended thereto.
19. Notices. Notices required under this Agreement shall be sent to the
following:
If to City: If to the Applicant:
City Manager APPLICANT NAME
City of Azusa COMPANY NAME
213 E. Foothill Blvd. STREET ADRESS
Azusa, CA 91702 CITY, STATE ZIP CODE
Notices given pursuant to this Agreement shall be deemed received as follows:
(1) If sent by United States Mail - on the date of receipt by the
receiving party.
(2) If by facsimile - upon transmission and actual receipt by the
receiving party.
(3) If by express courier service or hand delivery - on the date of
receipt by the receiving party.
The addresses for notices set forth in this Section 19 may be changed upon
written notice of such change to either the City or the Applicant, as appropriate.
[SIGNATURES ON FOLLOWING PAGES]
SIGNATURE PAGE TO
REIMBURSEMENT AGREEMENT
CITY OF AZUSA
a California municipal corporation
By: ____________________________________
City Manager
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
________________________________
City Attorney
COMPANY NAME
a TYPE OF ORGANIZATION
By:_____________________________
APPLICANT NAME
EXHIBIT A
SCOPE OF SERVICE FOR CONSULTANTS
CONSULANT NAME (TYPE OF WORK)
Any and all planning services needed for the Project as described in the Scope of Work
submitted by COMPANY. (See Exhibit A-1)
BEST BEST & KRIEGER LLP (LEGAL)
Any and all legal services as needed for the Project, including, but not limited to, review
of the environmental documents, permits, and related documents and any City approval
documents needed for the Project.
OTHER CONSULTANTS
Any and all other consultants determined by the City to be reasonably necessary for its
review and processing of the Project application(s).
EXHIBIT B
ESTIMATES COSTS FOR EACH CONSULTANT
COMPANY NAME (TYPE OF WORK)
COMPANY NAME current published rates for a total estimated amount of $xx,xxx.00
BEST BEST & KRIEGER LLP (LEGAL)
Standard private rates per attorney (minus 10% discount) for a total estimated amount
to be determined.
OTHER CONSULTANTS
To be determined.