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HomeMy WebLinkAboutContracts & Agreements_126-2013_CCv0001.pdf ENVIRONMENTAL REVIEW FUNDING AGREEMENT This funding agreement("Agreement") is made and entered into this 2d day of July,2013,by and between the City of Redlands, a municipal corporation {hereinafter "City")and Hillwood Enterprises. L.P. (hereinafter "Applicant"). City and Applicant are sometimes individually referred to herein as a"Party"and, together, as the.'Parties." RECITALS WHEREAS, Hillwood Enterprises L.P. is the applicant ("Applicant") for a proposed 1.0 15,740 square foot commercial warehouse/distribution center on approximately 50.66 acres located north of the Interstate 10 Freeway, along the south side of Lugonia Avenue and the east side of Bryn Mawr Avenue (the"Project")which requires environmental review pursuant to the California Environmental Quality Act ('*CEQA"); and WHEREAS, in accordance with City's Guidelines implementing CEQA, the environmental documents for the Project will be prepared by a consultant under contract to City;and WHEREAS, by executing this Agreement, Applicant expressly agrees to advance payment for all costs and expenses City incurs in the preparation of the environmental documents related to Applicant's Project, NOW,THEREFORE, in consideration of the mutual promises contained herein, the City of Redlands and Hillwood Enterprises L.P. agree as follows: AGREEMENT Section 1. Funding Obligation. Within ten (10) days of the date of written request of City,Applicant shall deposit the sum of Twenty Four Thousand Dollars ($24,000)(the"Deposit") with City to engage consultants who will commence work on the environmental documents for the Project, which includes the sum Twenty Thousand Dollars($20,000)as the estimated fee for the consultants' work and the sum of Four Thousand Dollars($4,000) as the estimated administrative costs which will be incurred by City. The Deposit will be applied towards the total cost for preparation of the environmental documents. City will advise Applicant in advance if the total costs will exceed the Deposit and Applicant shall thereafter make payments to City- for the balance of all other costs and expenses for preparation of the environmental documents within ten (10) days of the date City submits written invoices for the same to Applicant. Section 2. Compliance Required. Applicant acknowledges that City may require Applicant to make additional payments and supply data and information to determine whether Applicant's Project may have a significant effect on the environment, and to assist City and the consultants in preparing the environment documents. Applicant shall -I- 1,ca'lqim',Agreements=HillcNood Investment Properties,Env iron ment Review Funding Agreement FINAL CLEANdoc,doc promptly comply with all such requests by City, provided that Applicant may terminate this Agreement at any time and shall only be responsible for paying costs incurred by the City through the date of termination. Section 3. Failure to Comply. 1f, at any time, Applicant unreasonably delays in advancing funds as requested by City, paying any invoice from City when due,or failing to provide City with information or data requested pursuant to Section 2 hereof, such unreasonable delay shall suspend the running of the time periods described in State CEQA Guidelines sections 15107 and 15108 for the period of such unreasonable delay. Alternatively,Applicant acknowledges and agrees that City may, without liability to Applicant,disapprove the Project because of Applicant's delay in satisfying City's requirements. Section 4. Notices. All notices given pursuant to this Agreement shall be in writing and may be given by personal delivery or by mail. Notices sent by mail shall be addressed as follows: City Applicant Oscar Orci John Magness Development Services Director Senior Vice President City of Redlands Hillwood Enterprises, L.P. 210 East Citrus 901 Via Piemonte, Suite 175 PO Box 3005 Ontario, CA 91764 Redlands, CA 92373 When so addressed,such notices shall be deemed given upon deposit in the United States Mail. In all other instances,notices shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices are to be given by giving notice pursuant to this Section. Section 5. Attorneys' Fees. In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to costs and any other relief, be entitled to recovery of its reasonable attorneys' fees, including fees for use of in-house counsel by a Party. Section 6. Entire Agreement/Amendment. This Agreement represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, proposals,or verbal or written agreements regarding the same are superseded by this Agreement. Any amendment to this Agreement shall be in writing, approved by the City Council of City and signed by City and Applicant. Section 7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 8. Defense and Indemnity. Applicant shall defend, indemnify and hold harmless City,and its elected officials, officers,employees and agents, from and against any and all actions,claims, demands, lawsuits, losses and liability for damages to persons or property, including costs and attorneys' fees,that may be asserted or claimed by any -2- I:,caldjmtAgreementsiHillwood Investment Properties.Environment Review Funding Agreement.I:INAL CLEANdoc.doc person, firm, entity, corporation, political subdivision or other organization arising out of or in connection with City's processing of Applicant's Project, except that the indemnity and defense provided for in this Section shall not apply to any liability resulting from the sole negligence or fault of City, its officers. agents, employees, or separate contractors, and in the event of joint and concurrent negligence/breach of both Applicant and City, responsibility-and indemnity, if any, shall be apportioned in accordance with the law of the State of California, without waiving any governmental immunity available to City under California law and without waiving any defenses of the Parties under California law. City shall cooperate in the defense of any claim that is subject to the indemnity in this Section 8 as reasonably requested by Applicant and shall not settle any such claim or take any action that could prejudice Applicant's defense of any such claim without Applicant's consent which shall not be unreasonably withheld, conditioned or delayed. The provisions of this Section are solely for the benefit of the Parties to this Agreement and are not intended to create or grant any rights, contractual or otherwise,to any other person or entity. The provisions of this Section 8 shall survive any termination of this Agreement. Section 9. No Third Party Beneficiary. Applicant expressly acknowledges and agrees that City's contracts with the consultants to prepare the environmental documents for Applicant's Project is for the benefit of the public and undertaken in compliance with City's obligations under CEQA, and is not for the benefit of Applicant. Section 10. Venue. In the event that any legal action should be filed by either Party against the other,the venue and forum for such action shall be the Superior Court of the State of California for the County of San Bernardino or in the Federal District Court for the Central District of the State of California. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. . CITY OF REDLANDS HILLWOOD ENTERPRISES, L.P. A Texas limited partnership By: ACTe sIimitd liability com /its sale g nral partner By: B K- I Pete Aguilar,-Mlayor John iMagness, Sen i9fVice President ATTEST: Sam Irwin, city eJerk -3- Investment Properties Environment Revie�x Funding ApreemenrFINAL CLEANdoc doe