23-136 Agreement between the City of Cupertino and Vallco Property Owner LLC for Reimbursement of City Costs for Processing the Rise (Vallco Town Center) Development Project Applications - signed1
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND VALLCO
PROPERTY OWNER LLC FOR REIMBURSEMENT OF CITY COSTS FOR
PROCESSING THE RISE (VALLCO TOWN CENTER) DEVELOPMENT
PROJECT APPLICATIONS
This Agreement (“Agreement”) between the City of Cupertino (“City”), a
California municipal corporation, and Vallco Property Owner LLC
(“Developer”), a California limited liability company, is entered into this ____
day of __________, 2022, with reference to the following facts and intentions.
RECITALS
A.Vallco Property Owner LLC is the Developer of a mixed use
development project (“Project”) at 10101, 10123, 10330, 10150 N. Wolfe Road and
10343 Wolfe Road, Cupertino, California (the “Property”).
B.The Developer has submitted applications to the City for the following
land use approvals required for the Project: Senate Bill 35 Application
(modification request, including modification of tentative subdivision map), and
may submit further applications or modifications thereto in the future (“Project
Applications”).
C.Developer is solely responsible for and shall bear any and all costs and
expenses directly or indirectly incurred or payable by City in connection with
review and processing of the Project Applications.
D. These Project Applications necessitate the type of complex review and
processing for which the City Council requires a cost recovery agreement. Under
the City’s fee schedule, which was adopted by City Council Resolution 19-083
and may be updated from time to time, the Developer is responsible for paying
the City’s costs and expenses directly and indirectly incurred to review and
process the entire Project based on the time and materials required.
E.The Developer and City desire to ensure that the City does not pay for
or perform work for which reimbursement funds have not been previously
deposited by Developer and wish to establish by this Agreement the terms and
conditions for reimbursement of the City’s costs and expenses incurred in
connection with its review and processing of the Project Applications through
1st
April
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the completion of the development review process for the Project, including
additional investigation or study of, or for supplementing, redrafting, revising,
or amending, any document (such as an Environmental Impact Report, negative
declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the Project approvals and related environmental review,
if the Developer desires to continue to pursue the Project, and related activities
related to the Project Applications, including, but not limited to, enforcing the
mitigation monitoring and reporting program, implementing conditions of
approval, and defending challenges to the Project (individually and collectively,
“Post-Completion Activities”).
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 City agree as follows:
1.Parties. The parties to the Agreement are the City and the Developer.
2.Reimbursement of City Costs. The Developer shall reimburse the City for
all of the costs and expenses that the City directly or indirectly incurs in the review and
processing of all Project Applications and in considering any related approvals and/or
Post-Completion Activities, including the costs and expenses more particularly
described in Section 4 of this Agreement. This reimbursement obligation shall not limit
the City’s discretion, as is more particularly described in Section 4 of this Agreement
and shall not be contingent on the City’s hiring any specific Consultant or upon the
approval or disapproval of the Project. The provisions of this Section 2 shall survive
expiration or termination of this Agreement.
3.Payment Procedures.
a.Estimated Budget. The City has provided the Developer with an
estimated budget for the City’s costs and expenses it expects to incur in the review and
processing of application materials submitted for the Project, including the internal
costs and consultants’ costs and expenses described in Section 4 of this Agreement
("Estimated Budget”).
The Estimated Budget represents a good faith estimate of costs to be incurred in
the review and processing of the Project, but the Parties expressly acknowledge and
agree that actual costs and expenses may vary significantly based on factors that may
not be foreseeable, such as stakeholder involvement and environmental conditions at
the Property, and the estimate in no way limits the ability of the City to
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seek reimbursement for all costs and expenses it incurs or to revise the budget and
seek an increased deposit as provided for herein.
b. Deposit. The Developer shall deposit with the City the full amount
of the Estimated Budget in cash (“the Deposit”). The Deposit shall be kept in an
account maintained and controlled by the City and all interest earned on the Deposit, if
any, shall accrue to the City. The Deposit is not a “source of income” within the
meaning of the California Political Reform Act (pursuant to California Government
Code Section 87103.6). The Deposit will, at the City’s sole discretion, be used to
reimburse the costs incurred by the City in the processing of the Project Applications.
c. Deposit Increase. If at any point during the review and processing
of the Project or the Post-Completion Activities, the City reasonably believes that its
total costs and expenses will exceed the aggregate Estimated Budget, the City will
provide timely written notice to the Developer, which notice shall include the City’s
revised estimated budget for completing the processing of Project Applications. The
City will provide the Developer with the opportunity, if requested, to meet with the City
to discuss the revised budget. However, the Developer shall not be relieved of its
obligation to promptly increase the amount of cash in the Deposit to the level requested
by the City within thirty (30) days from date of receipt of the notice, unless expressly
agreed to otherwise by the City in writing. Until the Deposit has been increased by the
Developer by the amount in the revised budget, the City may, at its sole discretion,
subject to any obligations to review and process the Project under applicable law, elect
not to incur any additional costs on the Project (i.e., stop work); provided, however, that
the City reserves the right to deny any Project Application without prejudice if the City
is prevented from reviewing and processing the Project Application as a result of the
Developer's failure to comply with its obligations under this subsection. If City so
suspends or ceases processing the Project, any associated delays shall be attributed to
Developer for purposes of calculating timeframes under and to the extent permitted by
applicable law (including Government Code Sections 65920 et seq. (Permit Streaming
Act) and Public Resources Code Section 21000, et seq., and the guidelines at 14 Cal. Code
Regs. Section 15000 et seq. (collectively, “CEQA”)). The City and the Developer
acknowledge that the parties may mutually agree to extend any deadline for processing
and reviewing a Project Applications to address any delay or resolve any dispute arising
from the Developer's performance under this subsection.
d. Accounting for Costs. The City shall draw down its costs and
expenses for the Project against the Deposit as they are incurred and keep an accounting
of the same. City will pay each invoice, bill, and demand promptly after receipt thereof
in full, without deduction or offset. The Developer may periodically, but not more often
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than quarterly, make a request in writing to see the accounting. City shall deliver the
accounting to the Developer within thirty (30) business days after receipt of the written
request by the Developer.
e.Refund. Within sixty (60) business days of final City action on the
Project Applications, termination, or upon notification by the Developer that it wishes
to withdraw its application, and after the City has been fully reimbursed for all costs as
described in Section 4, below, the City shall remit to the Developer a final accounting
and any amount remaining of the Deposit. City’s refund of any Deposit balance does
not discharge Developer’s obligation to bear all costs and expenses incurred or payable
by City related to the Project, including the Post-Completion Activities.
4.Costs to be Reimbursed. Costs to be reimbursed under this Agreement
include any and all fees, costs, and expenses directly or indirectly incurred or payable
by City in connection with review and processing the Project and Post-Completion
Activities, including, but not limited to the following:
a.Internal Costs. The following reimbursable costs are Internal Costs.
i.City staff services. These costs include, but are not limited
to, staff time for City staff, including administrative staff and staff from the City
planning, engineering, public works, police, parks, and other departments. Staff time
shall be charged per the current fee schedule in effect on the date of service provided. If
it becomes necessary on a temporary basis for the City to hire additional staff to provide
regular City services while regular City staff are reviewing and processing Project
Applications or Post-Completion Activities, then the actual cost of hiring and
employing the additional staff may be billed as part of the City’s costs.
ii. City Attorney Services. Legal services billed to the City by
the City Attorney, or his or her delegate, as shown on Exhibit A. The City will add a
contract administration charge to the Legal services bill as set by the City’s fee schedule
in effect on the date of service provided.
iii. Associated Costs. City supplies, materials, copying, word
processing, postage, and similar costs.
b. Consultant Costs. These reimbursable Consultant costs include,
but are not limited to, the time and materials costs incurred by the City for outside
consultants and sub-consultants. Examples of consultants include, but are not limited
to, environmental consultants, land use planners, wetlands specialists, biologists, traffic
consultants, landscape architects, engineers, economists, fiscal impact analysts, outreach
facilitators, and outside legal counsel that the City may retain on an independent basis
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(individually and collectively “Consultants”). The City will add a contract
administration charge to the Consultants’ billings as set by the City’s fee schedule in
effect on the date of service provided.
5.City Discretion. Notwithstanding the obligation of Developer to
reimburse the City, the City shall have the sole discretion to:
a.Determine which persons the City will retain as Consultants to
work on processing Project Applications;
b.Select which of its employees and Consultants are assigned to work
on processing Project Applications;
c.Direct the work and evaluate the performance of, and terminate or
replace at any time, the Consultants whom the City retains and assigns to work on
processing Project Applications;
d.Determine the amount of compensation paid to Consultants who
are retained by the City to work on processing Project applications;
e.Determine how to compensate the Consultants who are retained
and assigned to work on processing Project Applications. Compensation shall be from
a City account under the exclusive control of City;
f.Prioritize and schedule the processing work and services produced
consistent with applicable law; and
g.Review and consider the Project. Nothing in this Agreement shall
be interpreted to obligate the City, its Planning Commission, City Council, boards,
officers, commissions, Consultants, staff, or employees to exercise discretionary
authority in any particular way or fashion in regard to the Project.
6.Dispute Resolution. If there is a dispute regarding a cost or expense
incurred under this Agreement, upon written notification by the Developer, the
Director of Community Development, or his or her 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 3 above, even if the dispute has not been resolved. If an adjustment to a cost
or expense is justified, the adjustment shall be reflected on the final accounting
submitted to the Developer.
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7.Term and Termination.
a.Term. 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.
b. Termination. If Developer fails to deposit the funds required in
accordance with Sections 3(b) and/or (c) and does not cure such failure within thirty (30)
calendar days after service of written notice from City, the Developer shall be in default
under this Agreement and City may terminate this Agreement by providing fifteen (15)
calendar days’ notice to Developer. If City terminates this Agreement due to a
Developer default, then City shall have no further obligation to process or continue
processing the Project to incur any additional costs or expenses. Developer hereby
expressly acknowledges and agrees that any and all Project Applications shall be
deemed to have been voluntarily withdrawn by Developer as of the date of such
termination by City. Nothing in this subsection shall be interpreted to impair the rights
conferred to the Developer by any approved Project Application.
8. Withdrawal of Application. At any time, the Developer may notify the
City that it wishes to withdraw its Project Applications and have the City stop
processing the Project. On receipt of such written notice, the City shall promptly
terminate all agreements with Consultants and, to the extent possible, cease incurring
further costs except as necessary to close the Project. All costs incurred prior to
withdrawal, and after withdrawal to close the Project, shall be reimbursed from the
Deposit as provided for in this Agreement. If the costs incurred exceed the Deposit, the
Developer shall pay the balance within 30 days from date of notice to reimburse.
9. City Review. Nothing in this Agreement shall be interpreted as
modifying the City’s obligation to review and process the Project in a manner consistent
with the terms of applicable law or to waive any right of the Developer under
applicable law.
10. Indemnification. The Developer agrees to sign and be bound by the terms
of the Indemnification Clause Acknowledgment attached hereto as Exhibit B.
11.Miscellaneous Provisions.
a.Recitals. The recitals of this Agreement are true and correct and
material to the adoption of this Agreement.
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b.Ownership of Documents. The City shall own all documents
produced by its staff and documents produced by Consultants and the Developer that
are provided to the City.
c. 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.
d.Not a Joint Venture. The parties agree that this Agreement does
not constitute a joint venture or undertaking between them.
e.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 to:
FOR CITY FOR DEVELOPER
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attn: City Manager
Name:
Address:
f. Amendment. This Agreement may be amended by a writing
signed by persons duly authorized by each party to enter into this Agreement.
g.Waiver. No City 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.
h.Legal Advice; Authority. Developer represents and warrants to
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 (c) Developer has freely signed this
Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of City or any City party except as specifically set forth in
this Agreement, and without duress or coercion, whether economic or otherwise. This
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Agreement shall be interpreted as though prepared jointly by both parties. Each
individual or entity executing this Agreement on behalf of Developer represents and
warrants that he or she or it is duly authorized to execute and deliver this Agreement
on behalf of Developer and that such execution is binding upon Developer.
i.Attorney’s 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.
j.Entire Agreement. This Agreement contains all the representations
and the entire agreement between the parties with respect to the subject matter of this
Agreement.
k.Governing Law. This Agreement, and the rights and obligations of
the parties, shall be governed by and interpreted in accordance with the laws of the
State of California.
12.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, 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.
13.Effective Date. This Agreement is effective as of the date noted on page 1.
CITY OF CUPERTINO DEVELOPER OR
REPRESENTATIVE (Power of
Attorney to be attached)
______________________ ________________________
Pamela Wu, City Manager Name:
Address:
Reed Moulds
2600 El Camino Real Suite 410
Palo Alto CA 94306
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ATTEST:
____________________________
Kirsten Squarcia, City Clerk
Approved as to form:
____________________________
Christopher D. Jensen, City Attorney
Christopher D. Jensen
EXHIBIT A - PROFESSIONAL SERVICE RATES FOR OUTSIDE LEGAL SERVICES
Goldfarb & Lipman LLP Partners: $395/hour
Senior Counsel $345 - $365/hour
Associates: $210 - $345/hour
Senior Law Clerk $195/hour
Law Clerk $180/hour
Litigation Project Coord. $210/hour
An administrative fee (15%) will be charged for outside agency review/consultant
services per City of Cupertino Fee Schedule A - General Fees.
BCITY O F a
CUPERTINO
REIMBURSEMENT AGREEMENT -EXHIBIT
Community Developmen t Department
10300 Ton-e Avenue
Cupertino, CA 95014
(408) 777-3308 / Fax (408) 777-3333
planning@cupertino .01·g
htt p://www.cupert ino.org/planning
REIMBURSEMENT AGREEMENT - EXHIBIT B
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EXHIBIT - INDEMNIFICATION CLAUSE ACKNOWLEDGEMENT
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P r in t N a m e, T itl eS ign a tu r e
X
Agreement between the City of Cupertino and
Vallco Property Owner LLC for Reimbursement
of City Costs for Processing the Rise (Vallco
Town Center) Development Project Applications
Final Audit Report 2023-12-06
Created:2023-12-04
By:Araceli Alejandre (aracelia@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAPmmC0hZ3hFYnToIrSTMguQPN6w7HFWLI
"Agreement between the City of Cupertino and Vallco Property
Owner LLC for Reimbursement of City Costs for Processing the
Rise (Vallco Town Center) Development Project Applications" Hi
story
Document created by Araceli Alejandre (aracelia@cupertino.org)
2023-12-04 - 9:07:41 PM GMT- IP address: 71.204.144.228
Document emailed to Reed Moulds (rmoulds@shpco.com) for signature
2023-12-04 - 9:13:31 PM GMT
Email viewed by Reed Moulds (rmoulds@shpco.com)
2023-12-04 - 9:53:11 PM GMT- IP address: 104.28.124.104
Email viewed by Reed Moulds (rmoulds@shpco.com)
2023-12-06 - 0:26:23 AM GMT- IP address: 4.53.20.66
Document e-signed by Reed Moulds (rmoulds@shpco.com)
Signature Date: 2023-12-06 - 9:04:07 PM GMT - Time Source: server- IP address: 73.202.60.109
Document emailed to Pamela Wu (pamelaw@cupertino.org) for signature
2023-12-06 - 9:04:09 PM GMT
Email viewed by Pamela Wu (pamelaw@cupertino.org)
2023-12-06 - 9:11:01 PM GMT- IP address: 104.47.73.254
Document e-signed by Pamela Wu (pamelaw@cupertino.org)
Signature Date: 2023-12-06 - 9:11:16 PM GMT - Time Source: server- IP address: 73.162.123.29
Document emailed to christopherj@cupertino.org for signature
2023-12-06 - 9:11:18 PM GMT
Email viewed by christopherj@cupertino.org
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Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen
2023-12-06 - 9:18:20 PM GMT- IP address: 136.24.22.194
Document e-signed by Christopher D. Jensen (christopherj@cupertino.org)
Signature Date: 2023-12-06 - 9:18:22 PM GMT - Time Source: server- IP address: 136.24.22.194
Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature
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Email viewed by Kirsten Squarcia (kirstens@cupertino.org)
2023-12-06 - 10:09:53 PM GMT- IP address: 104.28.123.99
Document e-signed by Kirsten Squarcia (kirstens@cupertino.org)
Signature Date: 2023-12-06 - 11:44:46 PM GMT - Time Source: server- IP address: 64.165.34.3
Agreement completed.
2023-12-06 - 11:44:46 PM GMT