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