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REV: 07-30-21 VR
<br />AGREEMENT
<br />1. Percentage Share of Costs. Developer agrees to pay 18 percent of the
<br />Anticipated CEQA Costs and, in the event that DTPP CEQA Review costs increase
<br />beyond the Anticipated CEQA Costs, Developer agrees to pay any additional costs in
<br />accordance with the percentages identified in this paragraph. Developer acknowledges
<br />that the costs of the DTPP CEQA Review will be shared among six projects as described
<br />in the Recitals. Developer agrees that should any of the other projects withdraw,
<br />Developer will pay an equivalent share of the additional DTPP CEQA Costs with the
<br />remaining applicants. For example, if one of the five similar size project withdraws its
<br />application, the four remaining projects will each pay one-fourth of 90 percent of the
<br />additional costs; and if the smaller project withdraws, each of the remaining projects will
<br />each pay one-fifth of 100 percent of the additional costs.
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<br />2. CEQA Deposit. City shall establish an account designed to fund the DTPP
<br />CEQA Review (“CEQA Deposit”). On or before the Effective Date of this First
<br />Amendment, Developer shall fund the CEQA Deposit by depositing with City 18 percent
<br />of the Anticipated CEQA Costs or One Hundred Eighty-Three Thousand Six Hundred
<br />Dollars ($183,600) in the form of a wire transfer of good funds. This initial deposit shall
<br />be non-refundable. Thereafter, Developer shall replenish the CEQA Deposit monthly
<br />such that the CEQA Deposit does not fall below Fifty Thousand Dollars ($50,000) to
<br />ensure adequate funds are available to pay Developer’s share of ESA’s invoices and any
<br />other DTPP CEQA Review related costs. Notwithstanding anything to the contrary herein,
<br />and for purposes of clarity, City agrees that if one of the other five projects defaults (rather
<br />than withdrawing its application) on its obligation to pay its percentage share of the CEQA
<br />Deposit, then Developer shall not be obligated for the amount owed by such defaulting
<br />project and that City shall continue with the DTPP CEQA Review with respect to
<br />Developer’s project so long as Developer is not also in default under this Agreement.
<br />3. Indemnification. To the fullest extent permitted by law, in accordance with
<br />the percentages identified in paragraph 1 above, Developer shall fully defend, indemnify
<br />(with legal counsel selected and approved by the City in the City’s sole discretion) and
<br />hold harmless the City and its officers, officials, boards, commissions, employees,
<br />consultants, agents, and volunteers from and against any claim, action, or proceeding to
<br />attack, set aside, void, or annul any action taken by the City on the DTPP CEQA Review,
<br />or any of the proceedings, acts, or determinations taken, done or made prior to said
<br />action, including, but not limited to, any writ of mandate, litigation, declaratory relief, or
<br />due process litigation which may arise or result from or be related in any way to the DTPP
<br />CEQA Review. This indemnification applies to any challenge to the DTPP CEQA Review
<br />whether or not the challenge singles out any particular project. To the extent that the City
<br />is required to use any of its own resources to respond to such a claim, action, or
<br />proceeding, Developer will reimburse the City for its share upon demand and upon
<br />presentation of an invoice describing the work done, the time spent on such work, and
<br />the hourly rate for such work by the employee, consultant, or agent of the City, including,
<br />but not limited to, all costs and fees incurred in additional investigation, or study of, or for
<br />supplementing, redrafting, revising, or amending any document (such as an
<br />ATTY/AGR.2021/Amend. No. 1/Tishman Speyer (2300 Broadway- Reimbursement Agreement Amendment) (Page 2 of 3)
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