23-034 Vallco Property Owner LLC for Project Manager Reimbursement Agreement017571.0001 4866-9695-6228.3 1
AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND VALLCO PROPERTY OWNER LLC FOR
REIMBURSEMENT OF CITY PROJECT
MANAGEMENT COSTS
This Agreement (“Agreement”) between the City of Cupertino (“City”), a California
municipal corporation, and Vallco Property Owner LLC (“Developer”), a California
corporation, is entered into this 11th day of May, 2023, with reference to the following
facts and intentions.
RECITALS
A. Vallco Property Owner LCC is the Developer of a mixed-use development project
(“Project”) located at 10123 North Wolfe Rd, Cupertino, California (the “Property”),
commonly known as the Vallco Town Center/Rise SB 35 Project.
B. On September 21, 2018, the City approved the Vallco Town Center Project pursuant
to Senate Bill 35 (“SB 35”), codified as amended at Government Code section 65913.4
C. On June 3, 2022, the City approved a modified version of the Project (known as “the
Rise”) pursuant to Government Code section 65913.4(g).
D. Developer desires to expedite the construction of the Project, and requires
subsequent approvals from the City and other agencies to commence and
complete construction, which the City seeks to process in compliance with
Government Code section 65913.4(h).
E. To ensure that multiple, complex subsequent approvals are processed in an
orderly and timely fashion, the Developer and the City mutually agree that the
City should appoint a Project Manager to oversee subsequent approvals for the
Project and construction-related activities and that the Developer should
reimburse the City for project management cost and expenses performed by the
Project Manager.
NOW, THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth in this Agreement, the sufficiency of which is hereby
acknowledged, the Developer and the City agree as follows:
1. REIMBURSEMENT OF CITY COSTS RELATING TO PROJECT MANAGER.
The Developer shall reimburse the City for all of the costs and expenses that the
City incurs related to project management services for post-Project approval
and/or construction activities related to the Project, including the services
017571.0001 4866-9695-6228.3 2
described more particularly in Exhibit B; provided, however, that project
management services shall be performed by no more than one City employee or
contract employee (“Project Manager”) unless the Developer agrees in writing to
the appointment of additional project management personnel. Reimbursement
shall be invoiced monthly and shall be made within 30 days of receipt of the
invoice.
2. APPOINTMENT OF PROJECT MANAGER; BUDGET ESTIMATE AND
MINIMUM MONTHLY PAYMENT. The person to be appointed the Project
Manager and the related estimated budget is provided in Exhibit A. The budget
estimate is provided for informational purposes only and does not limit the
Developer’s obligation to reimburse the City for expenses actually incurred by the
City. Recognizing the City’s commitment to providing the Project Manager as a
resource, Developer further agrees to pay for a minimum of 16 hours per month, even
if the Project Manager works less than 16 hours in a particular month. During the first
four months, the hourly rate shall be based on the City’s fee schedule for Planning
Staff, as set forth in Exhibit A, and subsequently, the parties shall meet and confer to
set the appropriate hourly rate which shall be based on the Project Manager’s total
pay and benefits assuming a 40 hour work week and 50 weeks per year.
Notwithstanding the obligation of Developer to reimburse the City, the City shall
have the sole discretion to select, retain, direct the work of, evaluate the performance
of, or terminate the Project Manager. The City may replace the Project Manager only
after consultation with Developer.
3. DISPUTE RESOLUTION. If there is a dispute regarding a cost or expense
incurred under this Agreement, upon written notification by the Developer, the
City Manager or their designee shall promptly meet with the Developer to review
and discuss the matter. However, the Developer shall not be relieved of its
obligation to pay the City amounts due within the time period identified in
Section 1, above, even if the dispute has not been resolved. Any objections to an
invoice not raised within 30 days of receipt shall be waived, and all costs incurred
shall thereafter be deemed reasonable regulatory costs for purposes of Article XIII
C of the California Constitution.
4. TERM AND TERMINATION. The term of this Agreement shall commence on
execution of this document by all parties and continue until the City has received
final payment of all costs. Either party may terminate this agreement after providing
thirty (30) days written notice to the other party.
017571.0001 4866-9695-6228.3 3
5. CITY REVIEW. Nothing in this Agreement shall be interpreted as modifying the
City’s obligation to review and process subsequent approvals for the Project in a
manner consistent with the terms of applicable law.
6. INDEMNIFICATION. Nothing in this agreement shall limit or otherwise modify
the Developer’s existing indemnification obligations owed to the City.
7. MISCELLANEOUS PROVISIONS.
a. Recitals. The recitals of this Agreement are true and correct and material to the
adoption of this Agreement.
b. Assignment. The Developer has the right to assign all of its rights and
obligations under this Agreement to a future owner or owners of the Property,
subject to the written consent of the City, which shall not be unreasonably
withheld, and amendment of this Agreement to reflect the change. The
Developer will be released from all obligations under this Agreement accruing
after such assignment and amendment.
c. Not a Joint Venture. The parties agree that this Agreement does not constitute
a joint venture or undertaking between them.
d. Notices. All notices must be in writing. A notice given in writing shall be
deemed received upon actual receipt or in five days from the date of mailing if
mailed if not received on a sooner date. Unless a change of address has been
previously received, notice shall be sent as follows:
To the Developer:
Vallco Property Owner LLC
2600 El Camino Real, Suite 410
Palo Alto, California 94306
Attention: Reed Moulds
To the City:
City Manager
10300 Torre Avenue
Cupertino, CA 95014
cc: City Attorney’s Office
e. Amendment. This Agreement may be amended by a writing signed by
persons duly authorized by each party to enter into this Agreement.
f. Waiver. No waiver of a breach or default under this Agreement shall constitute a
continuing waiver or a waiver of a subsequent breach of the same or any other
provision of this Agreement.
017571.0001 4866-9695-6228.3 4
g. Legal Advice; Authority. Developer represents and warrants to the City the
following:
(i) Developer has carefully read this Agreement, and in signing this
Agreement, does so with full knowledge of any right which Developer may
have;
(ii) Developer has received independent legal advice from its legal counsel as
to the matters set forth in this Agreement, or has knowingly chosen not to
consult legal counsel as to the matters set forth in this Agreement; and
(iii) Developer has freely signed this Agreement without any reliance upon any
agreement, promise, statement or representation by or on behalf of the City or
any City party except as specifically set forth in this Agreement, and without
duress or coercion, whether economic or otherwise. This Agreement shall be
interpreted as though prepared jointly by both parties. Each individual or entity
executing this Agreement on behalf of the Developer represents and warrants
that he or she or it is duly authorized to execute and deliver this Agreement on
behalf of the Developer and that such execution is binding upon the Developer.
h. Attorneys’ Fees. If either party brings an action or proceeding (including,
without limitation, any cross-complaint, counterclaim, or third-party claim)
against the other party to obtain a declaration of rights relating to this
Agreement or to recover damages or equitable relief for breach of this
Agreement, the prevailing party in such action or proceeding shall be entitled
to its costs, attorneys’ fees, and the other expenses of the action or proceeding
and of enforcement.
i. Entire Agreement. This Agreement contains all the representations and the
entire agreement between the parties with respect to the subject matter of this
Agreement.
j. Governing Law. This Agreement and the rights and obligations of the
parties thereunder shall be governed by and interpreted in accordance
with the laws of the State of California.
8. Severability. If any phrase, clause, sentence, section, subsection, paragraph, or
other portion of this Agreement is for any reason held by a court of competent
jurisdiction to be invalid, such invalidity shall not affect the validity of the
remaining portions of this Agreement. The parties declare that they would have
entered into this Agreement and each phrase, clause, sentence, section,
017571.0001 4866-9695-6228.3 5
subsection, paragraph, or other portion of this Agreement regardless of the fact
that any one or more phrases, clauses, sentences, sections, subsections,
paragraphs, or other portions may be declared invalid.
9. Effective Date. This Agreement is effective as of the date noted on page 1.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CITY OF CUPERTINO VALLCO PROPERTY OWNER LLC
A Municipal Corporation A California Corporation
By By
Name Name
Title Title
Date Date
APPROVED AS TO FORM:
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
Date
Reed Moulds
Managing Director/Authorized Representative
May 12, 2023
City Manager
May 12, 2023
Pamela Wu
Christopher D. Jensen
May 15, 2023
017571.0001 4866-9695-6228.3
EXHIBIT A
BUDGET ESTIMATE
Project Manager: Albert Salvador, P.E.
Initial Hourly Rate: $ 305/hour
Estimated Initial Monthly Budget: $5,000 to $10,000/month [assumes approximately 15-30
hours/month]
017571.0001 4866-9695-6228.3
EXHIBIT B
SCOPE OF SERVICE
Scope of Services:
1. Service all the Project related City compliance process
2. Facilitate the expedited processing of all building, planning and public works approvals and
related items including, but not limited to, signage, impact fees, final map and bonding with
the City departments
3. Facilitate and coordinate all the plan check of the drawings with the City’s 3rd party plan
check agency to ensure efficient processing
4. Facilitate and coordinate approvals for any field changes during construction, deferred
submittals, RFI’s and drawing amendments, in coordination with the third-party plan
checkers, City staff and the project design team
5. Manage the 3rd party Plan Check agencies processing time and cost per the 3rd party
agreement between City and the Ownership
6. Work closely with the 3rd party inspections team and the Project design team to efficiently
resolve any design issues in the field
7. Work with Project design team and Santa Clara Fire department to resolve life safety design
items
8. Work with the Project design team on all accessibility and code related design items
9. Facilitate and coordinate any approvals the project requires from third party government
agencies, including Santa Clara County, Cupertino Sanitary District, and Caltrans
VPO PM Reimbursement Agreement
Final Audit Report 2023-05-15
Created:2023-05-11
By:Araceli Alejandre (aracelia@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAGrxVdEDYKc3cpZtLJ7DJQGa5aPh8qdgR
"VPO PM Reimbursement Agreement" History
Document created by Araceli Alejandre (aracelia@cupertino.org)
2023-05-11 - 6:02:33 PM GMT- IP address: 73.170.27.253
Document emailed to Reed Moulds (rmoulds@shpco.com) for signature
2023-05-11 - 6:07:35 PM GMT
Email viewed by Reed Moulds (rmoulds@shpco.com)
2023-05-11 - 6:43:44 PM GMT- IP address: 73.202.60.109
Document e-signed by Reed Moulds (rmoulds@shpco.com)
Signature Date: 2023-05-12 - 4:32:51 PM GMT - Time Source: server- IP address: 4.53.20.66
Document emailed to Pamela Wu (pamelaw@cupertino.org) for signature
2023-05-12 - 4:32:52 PM GMT
Email viewed by Pamela Wu (pamelaw@cupertino.org)
2023-05-12 - 4:34:41 PM GMT- IP address: 104.47.73.254
Document e-signed by Pamela Wu (pamelaw@cupertino.org)
Signature Date: 2023-05-12 - 4:35:49 PM GMT - Time Source: server- IP address: 64.165.34.3
Document emailed to christopherj@cupertino.org for signature
2023-05-12 - 4:35:50 PM GMT
Email viewed by christopherj@cupertino.org
2023-05-12 - 4:37:51 PM GMT- IP address: 104.28.124.105
Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen
2023-05-12 - 5:46:03 PM GMT- IP address: 136.24.22.194
Document e-signed by Christopher D. Jensen (christopherj@cupertino.org)
Signature Date: 2023-05-12 - 5:46:05 PM GMT - Time Source: server- IP address: 136.24.22.194
Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature
2023-05-12 - 5:46:07 PM GMT
Email viewed by Kirsten Squarcia (kirstens@cupertino.org)
2023-05-12 - 9:14:41 PM GMT- IP address: 104.28.123.109
Document e-signed by Kirsten Squarcia (kirstens@cupertino.org)
Signature Date: 2023-05-15 - 3:11:17 PM GMT - Time Source: server- IP address: 104.28.85.202
Agreement completed.
2023-05-15 - 3:11:17 PM GMT