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HomeMy WebLinkAboutPR/BROADSTONE HERITAGE I LLCA-2019-162 INSURANCE NOT REQUIRED WORK NIAY PROCEED CLERK OF COUNCIL SEP 2 5 2019 REIMBURSEMENT AGREEMENT THIS REIMBURSEMENT AGREEMENT ("Agreement") is made and entered into on September 17, 2019 by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City") and PR/BROADSTONE HERITAGE I LLC, a Delaware limited liability company ("Developer"). City and Developer are individually referred to herein as "Party" and together referred to herein as "Parties." WITNESSETH WHEREAS, City previously entered into or concurrently is entering into that certain Grade Crossing Signal Installation Agreement ("Crossing Agreement") with BNSF RAILWAY COMPANY, a Delaware Corporation ("Railroad"), BNSF File No. BF10011783, to provide for the improvement of a railway crossing on Dyer Road between Red Hill Avenue and Pullman Street ("Crossing"). WHEREAS, Developer is the developer of property in the City at the intersection of Dyer Road and Red Hill Avenue ("Development") that has received various approvals from the City. WHEREAS, City has imposed a condition on the Development requiring Developer to reimburse the City for its costs for the Crossing work under the Crossing Agreement, the estimate for which is $296,940, as detailed in the Crossing Agreement. NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. Recitals. The recitals are true and correct, and are incorporated into this Agreement as though fully set forth as terms of this Agreement. 2. Payment. Developer hereby agrees to pay to City all amounts owing by the City to the Railroad under the Crossing Agreement within thirty (30) days following Developer's receipt of written request by the City evidencing City's obligation to pay such amounts to Railroad under the Crossing Agreement. 3. Documentation. The City shall promptly submit to Developer all correspondence and documentation provided by Railroad to City. City shall not amend or modify the Crossing Agreement without first obtaining Developer prior written consent. 4. Agreement Binding. This Agreement shall be binding upon and for the benefit of the Parties and their respective agents, assigns, directors, employees, executors, officers, representatives, and successors. 2205062.02/oc 1 372942-00005/8-2849/mrf/kp 5. Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and it is expressly understood and agreed that this Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever except by writing duly executed by authorized representatives of the Parties hereto. 6. Governing Law. This Agreement shall be governed by, construed in accordance with, and interpreted under the laws of the State of California and shall be deemed to have been entered into in the City, for purposes of venue no matter where the Agreement is actually executed. Both parties agree that the state and/or federal courts located in Orange County, California, shall be the venue for any action or proceeding that may be brought in connection with this Agreement. 7, Severabilijy. If any provision of this Agreement shall be determined to be contrary to law or unenforceable, the remaining provisions shall be severable and enforceable in accordance with their terms. 8. Counterparts. This Agreement may be executed in multiple identical counterparts, including the transmission of counterparts via electronic means, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. 9. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and any successor or assign of the Parties. No other person shall have any right of action based upon any provision of this Agreement, 10, Authority to Execute, The person or persons executing this Agreement on behalf of each individual Party warrants that he or she/they have the authority to execute this Agreement on behalf of the particular Party and has the authority to bind the particular Party to the performance of the obligations of this Agreement, 11. Waiver. No waiver of any breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, or right or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 12. The Agreement Term,. This Agreement shall commence on the date first written above and stay in effect until all reimbursements payable by Developer to City hereunder are paid in full. 13, Notices. Any notice to be given in connection with this Agreement shall be in writing and directed to the addresses below or such other addresses as either Party may later specify in writing. Notice is deemed effective on the date it is given if hand -delivered and on 1205062.01/oc 2 37294b00005/B-29-19/mrP/kp the day delivered if by overnight mail. Notice given by U.S. mail shall be deemed effective three (3) days after it is deposited in the U.S. Mail, postage prepaid and addressed as follows: CITY: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: Clerk of the Council DEVELOPER: PR/Broadstone Heritage I LLC 450 Newport Center Drive Suite 550 Newport Beach, CA 92660 Attn: Kim Bucklew These Parties agree to the foregoing: CITY OF SANTA ANA, a charter city and municipal corporation By:�� Kristine Ridge, City Manager APPROVED AS TO FORM: By: l rV- . John Funk, Assistant City Attorney �s %n Daisy Gomez, Clerki of the Council 1205062.01/0c 372942 00005/8-28-19/m fft "Developer" PR/BROADSTONE HERITAGE I LLC, a Delaware limited liability company By: Heritage Village OC LLC, a Delaware limited liability company, its sole member By: PR/Heritage Holdings LLC, a Delaware limited liability company, its sole member By: Broadstone Heritage Alliance, LLC, a Delaware limited liability company, its member By: � �kk� _ Name: Kim Bucklew Title: Member 12050619110c 3]2942-00005/)d039/mrf/kp 4