Loading...
HomeMy WebLinkAboutC-5387(A) - Deposit Agreement for Costs Related to Utlity Relocation Design PlansDEPOSIT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TSG — PARCEL 1, LLC FOR COSTS RELATED TO UTLITY RELOCATION DESIGN PLANS THIS AGREEMENT ("Agreement") is made and entered into this 15th day of December , 2014, by and between the City of Newport Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and TSG — PARCEL 1, LLC, a Delaware limited liability company, hereinafter referred to as "DEVELOPER." ." CITY and DEVELOPER are at times referred to individually as "Party" and collectively as "Parties" herein. WHEREAS, DEVELOPER is the owner of that certain real property located at 4311-4321 Jamboree Road in the City of Newport Beach, County of Orange, State of California (the "Property"); and WHEREAS, on March 12, 2013, the City Council approved the Uptown Newport Planned Community Development Plan (PA2011-134) project (the "Project") which includes developing the Property into a high -density mixed use residential project with up to 1,244 residential units, 11,500 square feet of retail space, and 2 acres of park space; and WHEREAS, On March 12, 2013, the City Council approved that certain Development Agreement between City of Newport Beach and Uptown Newport LP Concerning Uptown Newport Property (the "Development Agreement"), which recognized that the Project would result various significant public benefits to the City including but not limited to construction of underground utility lines to serve the Project; and Deposit Agreement/Design Relocation Plan Uptown 9.5.14 1 WHEREAS, DEVELOPER has requested that City assist by initiating the proposed undergrounding of the existing 66 KV overhead electric transmission lines along the Project's frontage on Jamboree Road, and City has agreed to cooperate in this underground effort in good faith, which requires the CITY to coordinate with utility provider Southern California Edison (SCE) so that SCE can provide a design relocation plan; and DEVELOPER and CITY desire that the preparation of a design relocation plan for the SCE facilities be commenced as soon as possible and also desire to have CITY commit sufficient resources to enable the expeditious preparation of a SCE relocation plan and related activities. NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties agree as follows: 1. PAYMENT DEVELOPER agrees to the make an initial deposit to CITY in the amount of ONE HUNDRED NINETEEN THOUSAND Dollars ($119,000) (hereinafter the "Deposit") within five (5) business days after this Agreement has been fully executed by the Parties. The Parties acknowledge that the Deposit will be used by CITY to pay SCE for designing an undergrounding plan for the transmission facilities along the Project's frontage on Jamboree Road; preparing a cost estimate for the proposed relocation; and related activities (hereafter , "SCE Design and Estimation Services"). DEVELOPER acknowledges that the amount referenced in this Agreement is SCE's best estimate of the costs for the services described herein, and that the actual cost of said services may be higher. In the event that the actual cost of said services exceeds the estimated costs, DEVELOPER agrees to pay the incremental increase in costs that exceed DEVELOPER's Deposit in order to cover the actual cost within ten (10) business days after receiving CITY's invoice for same. In the event the actual costs of the SCE Design and Estimation Services are less than the estimated costs, CITY will refund to DEVELOPER the difference between the actual and estimated Deposit Agreement/Design Relocation Plan Uptown 9.5.14 2 • costs or DEVELOPER will advise the CITY whether it wants the unused funds to be applied to other costs associated with the undergrounding effort. In the event the undergrounding effort is terminated, DEVELOPER acknowledges that all costs incurred by SCE and owing to SCE will be paid by CITY from the Deposit. 2. EXCLUSIVE CONTROL BY CITY CITY will maintain exclusive control over the work described herein. Nothing in this Agreement shall be deemed to: (a) Require CITY to approve any plan, proposal, suggestion, application or request submitted by DEVELOPER; (b) Limit, in any respect whatsoever, CITY's sole authority to direct and control the planner(s) assigned to DEVELOPER's various development projects; or (c) Impose any liability on CITY different from any liability as may otherwise be established by law. 3. TERMINATION OF AGREEMENT (a) Either Party may terminate this Agreement at any time with or without cause, upon ten (10) days prior written notice to the other Party. DEVELOPER shall be responsible for all costs incurred in connection with the Deposit and SCE Design and Estimation Services prior to termination, including any and all costs incurred in accordance with this Agreement after notice of termination has been given. (b) Upon DEVELOPER'S full payment of the Deposit, including any incremental increase in the Deposit amount as discussed in Section 1 above, as well as reimbursement to the CITY for costs incurred by the CITY in order to commit sufficient resources to enable the expeditious preparation of a SCE relocation plan and related activities shall be fully satisfied and DEVELOPER shall have no further obligations under this Agreement. Deposit Agreement/Design Relocation Plan Uptown 9.5.14 3 4. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to DEVELOPER's agent or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below; provided that CITY and DEVELOPER, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: TO CITY: TO DEVELOPER: City of Newport Beach ATTN: David A. Webb 100 Civic Center Drive Newport Beach, CA 92660 TSG-PARCEL 1, LLC c/o Shopoff Realty Investments, L.P. 2 Park Plaza, Suite 700 Irvine, CA 92614 Attn: William A. Shopoff With a copy to: Jackson DeMarco Tidus Peckenpaugh 2030 Main Street 12`h Floor Irvine, CA 92614 Attn: Gregory P. Powers, Esq. 5. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 6. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded Deposit Agreement /Design Relocation Plan Uptown 9.5.14 4 from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 7. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 8. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. Deposit Agreement /Design Relocation Plan Uptown 9.5. t 4 5 9. ATTORNEY' S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 10. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 11. ENTIRETY This Agreement, and the attached exhibits, contains the entire agreement between the parties respecting the subject matter of this Agreement and supercedes all prior understanding and agreements whether oral or in writing between the parties respecting the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. [SIGNATURES ON FOLLOWING PAGE] Deposit Agreement !Design Relocation Plan Uptown 9.5.14 6 DEVELOPER, CITY OFNEWPORT BEACH, a municipal TSG — PARCEL 1, LLC, :Delaware limited corporation of the State of California liability co By: Willi: A. Shopo f ITS: Chairman and Chief Executive • fficer AND By: Sandra G. Sciutto ITS: Chief Financial Officer Deposit Agreement /Design Relocation Plan Uptown 9.5.14 7 y Manager City Clerk 11lC)e2-011.5- OVED AS TO FORM: City Attorney 11(12.11t( INITIATED AND APPROV Di ctor orPublic Works