HomeMy Public PortalAboutC-20-043 - Plenitude Holdings, LLC Reimbursement Agreement, Victoria Gulf CourseREIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT ("Agreement") is executed this �P- day
of , 2020 ("Effective Date"), by and between the CITY OF CARSON, a California
muni ipal corporation ("City"), and PLENITUDE HOLDINGS, LLC, a Wyoming limited
C� liability company ("Plenitude"). City and Plenitude may be referred to, individually or
collectively, as "Party" or "Parties."
RECITALS
WHEREAS, in September 2018, Plenitude initiated discussions with the City for a
memorandum of agreement ("MOA") with respect to Plenitude's proposed development of a
project ("Project") on the property Iocated at 340 East Martin Luther King Jr. Street, in the City
of Carson known as the Victoria Golf Course ("Property"), and in order to address certain
concerns of the City with respect to the Project as set forth in the City's comment letters to the
Initial Study and Draft Environmental Impact Report for the Project; and
WHEREAS, the County of Los Angeles is the owner of the Property and is acting as the
lead agency, within the meaning of the California Environmental Quality Act, Public Resources
Code § 21000 et seq. ("CEQA"), for purposes of conducting environmental review of the Project,
as well as the regulatory approval authority over the Project's entitlements; and
WHEREAS, in connection with the MOA, Plenitude has proposed a tax sharing
arrangement with the City, wherein the City would agree to refund Plenitude a portion of the sales
taxes derived from the Project ("Tax Sharing Arrangement"); and
WHEREAS, the City and Plenitude desire to enter into this Agreement to ensure Plenitude
will be responsible for all City costs reasonably related to the proposed Tax Sharing Arrangement
and the MOA, and for Plenitude to deposit funds with City in advance to cover such costs, subject
to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set
forth herein, and for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the Parties hereby agree as follows:
TERMS
1. Incorporation of Recitals. The Recitals set forth above are incorporated herein by
this reference.
2. Plenitude Responsibility for City Costs. Plenitude shall be responsible for, and
shall reimburse City for, all costs, fees and expenses of City reasonably related to the processing
of the MOA and Tax Sharing Arrangement (the "City Costs"). City Costs include, but are not
limited to: (1) City staff, legal, consultant, or other third party costs in reviewing, preparing,
negotiating, processing, and obtaining approval for (including noticing and holding public hearings
and considering public comments) the MOA, the Tax Sharing Arrangement, and any other
agreements or documents necessary to effectuate the Tax Sharing Arrangement (including, without
limitation, the Project proforma); and (2) City staff, legal, consultant, or other third party costs
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related to litigation against or challenges to the MOA or Tax Sharing Arrangement, including
defense of any legal or administrative action challenging the MOA or Tax Sharing Arrangement.
Reimbursable City Attorney rates will not exceed $350 per hour. Other specialty counsel and
consultants will bill at their respective hourly rates. Plenitude's obligation to deposit and reimburse
City Costs are in addition to Plenitude's duty to indemnify, defend, and hold harmless City, as set
forth in Section 7, below.
In connection with the foregoing, Plenitude has previously submitted to City a
deposit in the amount of Twenty Thousand Dollars ($20,000) to cover City Costs (the "Deposit"),
which shall be replenished in accordance with Section 2.2, below. At no point shall the minimum
balance of the Deposit fall below Three Thousand Dollars ($3,000) (a "Deficiency").
2.1 Reimbursement of City Costs Previously Incurred. Plenitude
acknowledges and agrees that the Deposit may be used to reimburse the City for any City Costs
incurred prior to the Effective Date, which City Costs have not as of the Effective date exceeded
the sum of Three Thousand =Dollars ($3,000).
2.2 Additional Deposits by Plenitude. If a Deficiency occurs, Plenitude shall
make an additional monetary deposit to the City within ten (I0) days of City's written request to
Plenitude. City's written requests for additional deposits shall state what costs have been incurred
to date and provide copies of reasonable back-up documentation of same. If any deposited sums
ultimately exceed the costs incurred by City, City shall refund the difference as set forth in Section
2.6.
2.3 City's Right to Cease Work. In the event that Plenitude does not promptly
replenish the Deposit as required by Section 2.2, or as required by Section 7.2, City may
immediately cease all work related to or concerning the MOA and/or Tax Sharing Arrangement.
2.4 Account Maintenance; Interest on Deposits. Any amounts deposited by
Plenitude under this Agreement, may be co -mingled with other City funds or maintained in a
segregated interest-bearing account of City's choice.
2.5 Accounting. City shall keep an accounting of the City Costs incurred by
City and all deposits made by Plenitude. The City shall provide to Plenitude a summary of
expenditures made from the Deposit for City Costs, within thirty (30) days of receipt of a written
request therefor from Plenitude; provided that such request shall not be made more than once
during any two (2) month period. Failure of City to provide any such accounting shall not excuse
Plenitude's duty to perform any act, including the duty to make full and timely deposits required
under this Section 2.
2.6 Unexpended Funds; Reservation of City's Discretion. Following the
City Council's consideration of the MOA and Tax Sharing Arrangement, upon (1) disapproval of
same, or (2) after approval of same, and the expiration of all applicable appeal periods (if any), all
unexpended portions of the Deposit shall be refunded to Plenitude, without interest. If a legal or
administrative challenge is made to the MOA or Tax Sharing Arrangement, then at any time
thereafter, if Plenitude gives written notice of its election to terminate this Agreement, the City
shall return any then -unexpended portion of the Deposit to Plenitude, without interest, less an
amount equal to any unpaid expenses previously incurred by the City. Notwithstanding anything
to the contrary herein, the provisions of this Agreement shall in no way obligate the City to approve
the MOA or Tax Sharing Arrangement or take any action related thereto. City reserves the right to
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exercise its discretion as to all governmental matters which City is, by law, entitled or required to
exercise, and nothing in this Agreement shall be construed as having the effect of waiving or
limiting police powers and exercise of discretion by City.
3. City Release; Termination. This Agreement shall terminate one (1) year after the
Effective Date unless Plenitude (1) has earlier terminated this Agreement and withdrawn its
request for the Tax Sharing Arrangement, or (2) has outstanding reimbursement obligations to the
City at such time and/or City will incur additional reimbursable costs after such date, in which
event this Agreement will be automatically extended for an additional one (1) year term until
Plenitude has reimbursed all City Costs required under this Agreement, and all third -party
challenges contemplated by Section 7 of this Agreement have been fully and finally resolved with
no further opportunities for appeal.
4. Remedies. In the event of a breach by Plenitude of its indemnification obligations
pursuant to Section 7 of this Agreement, City may, in addition to any other remedies, seek to
recover all City Costs incurred by City plus reasonable attorneys' fees in enforcing this Agreement.
This provision will not be interpreted to curtail any of City's remedies at law or equity against
Plenitude for any violation of any City codes or regulations, nor shall it be interpreted as a waiver
of any defense of Plenitude.
Conflicts of Interest.
5.1 No Financial Relationship. Plenitude acknowledges the requirements of
Government Code Section 1090 et seq. (the "1090 Laws") and represents and warrants that it has
not entered into any financial or transactional relationships or arrangements that would violate the
1090 Laws, nor shall Plenitude solicit, participate in, or facilitate a violation of the 1090 Laws.
5.2 Plenitude's Representations and Warranties. Plenitude represents and
warrants that it is and will continue to be sufficiently capitalized to perform its obligations under
this Agreement and is duly authorized to do business in the State of California. Plenitude further
represents and warrants that for the twelve (12) month period preceding the Effective Date,
Plenitude has not entered into any arrangement to pay financial consideration to, and has not made
any payment to, the City's consultants, except in the ordinary course of such consultant's and
Plenitude's work on other, unrelated development efforts, including without limitation,
compensation paid to Alan D. Kotkin & Associates for leasing -related matters. Plenitude further
represents and warrants that, for the 12 -month period preceding the Effective Date of this
Agreement, it has not entered into any arrangement to pay financial consideration to, and has not
made any payment to, any City official, agent or employee that would create a legally cognizable
conflict of interest as defined in the Political Reform Act (California Government Code sections
87100 et seq.).
6. Plenitude Acknowledgements. Subject to the reimbursement obligations set forth
in this Agreement, Plenitude acknowledges and agrees that, with respect to the work concerning
the MOA and Tax Sharing Arrangement:
6.1 City has sole discretion to select which of its employees and contractors are
assigned to the work.
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6.2 City has sole discretion to direct the work and evaluate the performance of
the employees and contractors assigned to the work, and City retains the right to terminate or
replace at any time any such person.
6.3 City has sole discretion to determine the amount of compensation paid to
employees or contractors assigned to the work.
6.4 City, not PIenitude, shall pay employees and contractors assigned to the
work from a City account.
7. Indemnification and Hold Harmless.
7.1 Agreement Not Liability or Debt or Liability of City. This Agreement
shall create no liability for the City whatsoever for the inability of Plenitude to obtain approval
of the MOA and/or Tax Sharing Arrangement. No official, officer, employee or agent of the
City shall be personally liable hereunder to any extent. The Parties further acknowledge and
agree that this Agreement is not a debt of the City. The City shall not have any liability
hereunder other than to return the unexpended and uncommitted portions of the Deposit as
provided in Section 2.6 above, and to provide an accounting under Section 2.5 above. The
City shall not be obligated to advance any of its own funds with respect to any City Costs.
7.2 Indemnification. Plenitude agrees to indemnify, protect, defend, and hold
harmless the City and its officials, officers, employees, agents, elected boards, commissions,
departments, agencies, and instrumentalities thereof (collectively, "City Parties"), from any and
all actions, suits, claims, demands, writs of mandamus, liabilities, losses, damages, penalties,
obligations, expenses, and any other actions or proceedings (whether legal, equitable, declaratory,
administrative, or adjudicatory in nature), and alternative dispute resolution procedures (including,
but not limited to, arbitrations, mediations, and other such procedures) asserted by third parties
against the City that challenge, or seek to void, set aside, or otherwise modify or annul, the action
of, or any approval by, the City for or concerning this Agreement, the MOA, the Project, or the
Tax Sharing Arrangement (including, but not limited to, reasonable attorneys' fees and costs)
(herein the "Claims and Liabilities"). In the event any action for any Claims and Liabilities is
brought against the City and/or City Parties, upon City's notification to Plenitude of the pendency
of a claim or suit, Plenitude shall make a minimum deposit sufficient to pay all of PIenitude's
indemnification obligations for the following ninety (90) days, which includes legal costs and fees
anticipated to be incurred as reasonably determined by the City; provided, however, Plenitude may
notify the City that Plenitude no longer wishes to pursue the Project, MOA or Tax Sharing
Agreement and terminates this Agreement, in which event any further deposit shall not be required,
except to the extent any Claims or Liabilities remain outstanding in which case, PIenitude shall
continue to be required to reimburse the City for any such Claims and Liabilities until finally
resolved. Plenitude shall make any deposits required under this Section within five (5) business
days of the City's written request. At no point during the pendency of such claim or suit shall the
minimum balance of such deposit fall below Ten Thousand Dollars ($10,000).
If Plenitude fails to timely pay such funds, the City may continue its own defense or
abandon the action without Iiability to Plenitude and may recover from Plenitude any attorneys'
fees and other costs for which the City may be liable as a result of such continuance or
abandonment of the action. It is expressly agreed that the City shall have the right to utilize the
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01135.0018/640028.1 da
City Attorney's office or use other legal counsel of its choosing. Plenitude's obligation to pay the
defense costs of the City shall extend until final judgment, including any appeals, unless Plenitude
notifies the City that it no longer wishes to pursue the Project, MOA or Tax Sharing Arrangement
and terminates this Agreement. City agrees to fully cooperate with Plenitude in the defense of any
matter in which PIenitude is defending and/or holding the City harmless. The City may make all
reasonable decisions with respect to its representation in any legal proceeding, including its
inherent right to abandon its own independent defense of the litigation in its sole and absolute
discretion, and City's reasonable decision to abandon its own independent defense of any
litigation, including but not limited to following an adverse judgment or failure to appeal, shall not
cause a waiver of the City's indemnification rights; provided, however, that any decision by the
City to settle litigation shall not, without the written consent of Plenitude, bind or adversely and
materially affect Plenitude. City shall discuss litigation strategy with Plenitude in good faith, and
the Parties shall act jointly in filing motions, briefs, trial statements, and other appropriate court
documents, and in approving settlement of such action.
7.3 Period of Indemnification. Plenitude's indemnification obligations under
Section 7.2 shall begin upon the Effective Date and shall survive termination or expiration of this
Agreement, until such time as the City has recovered the City Costs incurred up until the
termination or expiration. If City and Plenitude enter into a Development Agreement that is
approved by the City Council, the indemnity obligations in this Agreement may, pursuant to
express the terms of the Development Agreement, be superseded by Plenitude's indemnity
obligations under such Development Agreement.
S. Assignment. Plenitude may not assign or transfer this Agreement (or its rights or
obligations hereunder) to any other unaffiliated entity unless agreed to in writing by City, which
may be denied in its sole discretion.
9. Relationship Between the Parties. The Parties agree that this Agreement does not
operate to create the relationship of partnership, joint venture, or agency between City and
Plenitude. Nothing herein shall be deemed to make Plenitude an agent of City.
10. Notices. All notices, demands, invoices, and communications shall be in writing
and delivered to the following addresses or such other addresses as the Parties may designate by
written notice:
To City: City of Carson
701 East Carson Street
Carson, CA 90745
Attn: Saied Naaseh, Community Development Director
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01135.0018:640028.1 da
Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave. Suite 1700
Irvine, CA 92612
Fax: 949-223-1180
Email: ssoltani@awattomeys.com
Attn: Sunny Soltani, City Attorney
To Plenitude: Plenitude Holdings, LLC
222 Martin, Suite 160
Irvine, California 92612
Attn: Randall Blanchard
Fax:
Email: randy@sanddollarpartners.com
Copy to: SLF — Victoria, LLC
c/o Shopoff Realty Investments, L.P.
2 Park Plaza, Suite 700
Irvine, CA 92614
Fax: 949-417-1397
Attn: William Shopoff
Email: bshopoff@shopoff.com
Each such notice shall be deemed delivered to the Party to whom it is addressed and shall be
deemed given and delivered in the following manner: (i) if personally served or delivered, upon
delivery; (ii) if given by registered or certified mail, return receipt requested, deposited with the
United States mail postage prepaid, seventy-two (72) hours after such notice is deposited with the
United States mail; (iii) if given by overnight courier, with courier charges prepaid, twenty-four
(24) hours after delivery to said overnight courier; or (iv) if given by any other means, upon
delivery at the address specified in this Section.
11. Cooperation; Further Acts. The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary,
appropriate, or convenient to attain the purposes of this Agreement.
12. Construction; References; Captions. The Parties agree that they or their agents
have participated in the preparation of this Agreement, and therefore, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or against
any Party. Unless otherwise specified, any term referencing time, days, or period for performance
shall be deemed calendar days and not business days, provided, however that any deadline that
falls on a weekend or holiday or other day in which the City is not open for business shall be
extended to the next City business day. All references to Plenitude include all personnel,
employees, agents, and contractors of PIenitude, except as otherwise specified in this Agreement.
All references to City include its elected officials, appointed boards and commissions, officers,
employees, agents, and volunteers. The captions of the various paragraphs are for convenience and
ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent
of this Agreement.
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13. Amendment; Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
14. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any contractual right
by custom, estoppel, or otherwise.
15. Binding Effect. Each and all of the covenants and conditions shall be binding on
and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or
assigns. This Section shall not be construed as an authorization for any Party to assign any right
or obligation.
16. No Third -Party Beneficiaries. There are no intended third -party beneficiaries of
any right or obligation assumed by the Parties.
17. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect, and shall be construed so as to effectuate the intent of the
Parties.
18. Consent to Jurisdiction and Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of California. Any legal action or
proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the
Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the
appropriate California State Court in the County of Los Angeles, California. Each Party waives
the benefit of any provision of state or federal law providing for a change of venue to any other
court or jurisdiction including, without limitation, a change of venue based on the fact that a
governmental entity is a party to the action or proceeding, or that a federal right or question is
involved or alleged to be involved in the action or proceeding. Without limiting the generality of
the foregoing waiver, Plenitude expressly waives any right to have venue transferred pursuant to
California Code of Civil Procedure Section 394.
19. Time is of the Essence. Time is of the essence with respect to this Agreement.
20. Counterparts. This Agreement may be signed in one or more counterparts, each
of which shall constitute an original and which collectively shall constitute one instrument.
21. Entire Agreement. This Agreement contains the entire agreement between City
and Plenitude and supersedes any prior oral or written statements or agreements between City and
Plenitude with respect to the subject matter of this Agreement.
22. Authority. The persons executing this Agreement on behalf of Plenitude hereto
warrant that: (i) Plenitude is duly organized and existing; (ii) they are duly authorized to execute
and deliver this Agreement on behalf of Plenitude; (iii) by so executing this Agreement, PIenitude
is formally bound to the provisions of this Agreement; and (iv) the entering into of this Agreement
does not violate any provision of any other agreement to which Plenitude is bound.
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01135.0018:640028.1 da
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written.
ATTE
CITY:
CITY {
corpora
APPROVED AS TO FORM:
By:
Sunny So tans, City Attorney
[DJA]
A
PLENITUDE:
PLENITUDE HOLDINGS, LLC, a Wyoming
limited liability company
Title:
By
Name:
Title:
PLENITUDE'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS
SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
OR OTHER RULES OR REGULATIONS APPLICABLE TO PLENITUDE'S BUSINESS ENTITY.
011350019!&=23 1 do
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written.
ATTEST:
Donesia Gause-AIdana, City Clerk
APPROVED AS TO FORM:
0
Sunny K. Soltani, City Attorney
[DJA]
CITY:
CITY OF CARSON, a California municipal
corporation
Sharon Landers, City Manager
PLENITUDE:
PLENITUDE HOLDINGS, LLC, a Wyoming
limited Iiability company
0
Name:
Title:
By:
Name:
Title:
PLENITUDE'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS
SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
OR OTHER RULES OR REGULATIONS APPLICABLE TO PLENITUDE'S BUSINESS ENTITY.
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01135.0018-:640028.1 da
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the I
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2020 before me, , personally appeared , proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT
TITLE(S) NUMBER OF PAGES
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL DATE OF DOCUMENT
❑ ATTORNEY-IN-FACT SIGNER(S) OTHER THAN NAMED ABOVE
❑ TRUSTEE(S)
❑ GUARDIANICONSERVATOR
❑ OTHER
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
01 E35,0019:640028.1 da
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the I
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ' N, �11 b'
On , 2020 before me, f� 2 F II_j0_ p rso� l ppeared Iu t proved to me on the
bans of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
. ,� '{ERRI HOVDESiAD
WITNESS my had o Ci a . : ,,,,j�'-y; Notary Public - California
€ Orange County
Sig -' Commission # 2244544
My Comm. Expires Jun 28. 2022 11
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT
TITLE(S) NUMBER OF PAGES
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL DATE OF DOCUMENT
❑ ATTORNEY-IN-FACT SIGNER(S) OTHER THAN NAMED ABOVE
❑ TRUSTEE(S)
❑ GUARDIANICONSERVATOR
❑ OTHER
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
01135 00181640028.1 da ..