CONTRACT 5936 Reimbursement Agreement CLOSEDAgreement No. 5936
REIMBURSEMENT AGREEMENT
i
This Reimbursement Agreement ("Agreement") is entered into as of July 1f�020 by and
between the City of EI Segundo, a general law city and municipal corporation ("City"), and
Smoky Hollow Industries, LLC, a California Limited Liability Company ("Applicant"). The
parties agree as follows:
Recitals. This Agreement is made with reference to the following facts and
circumstances:
The Applicant requests a community benefit plan approval in order to build
an addition to the property that is located at 1320-1330 East Franklin
Avenue (the "Project").
The Project requires the retention of professional consultants; the costs of
attorneys' fees; the costs of work performed by City staff to complete the
number of tasks including drafting documents and environmental review
(collectively, "Project Costs").
C. City believes it is in the public interest for Applicant to pay for such Project
Costs. Applicant understands that all work performed by the City related to
the Project will be under the direction of City, but at Applicant's expense.
2. City Reimbursement. Applicant agrees to fully reimburse the City for the Project
Costs. The City has estimated the Project Costs as being approximately $20,000.
However, the Applicant acknowledges that the actual amount of such costs and
expenses may be different. Nonetheless, even though the actual amount of such
Project Costs may be different, the Applicant agrees to reimburse the City for the
full amount of such actual costs in the manner provided in this Agreement. City will
provide Applicant with an accounting of the Project Costs on a monthly basis,
which accounting the Applicant agrees will be conclusive, in the absence of
manifest error. The total of the costs of the Project, as disclosed by the accounting,
is called the "Reimbursement Amount."
3. City has Nq_�bligation to Awrove Project. By signing this agreement, Applicant
acknowledges and understands that this Agreement in no way obligates the City
to approve any of the entitlements or environmental documents for the Project.
The City and its elected and appointed officials retain sole discretion to either
approve or deny any of the environmental documents or entitlements that are
subject of this Agreement and need to effectuate the Project.
4. Method of Reimbursement.
a, Except as provided below, upon execution of this Agreement, Applicant
agrees to deposit with City $20,000 ("Deposit Amount") which represents
100 percent of the estimated Reimbursement Amount. Costs associated
with the Project will be charged against the deposit amount.
b, The Deposit Amount will be placed in a non-interest bearing trust account
established by the City Manager. Applicant understands and agrees that
Agreement No. 5936
City will not pay interest to Applicant on the Deposit Amount and Applicant
will not seek such interest payments from City.
Replenishment Deposit. Whenever the Deposit Amount balance falls below
$2,000.00, the City may request the Applicant replenish the amount
("Replenishment Deposit"). Applicant agrees to deliver a Replenishment
Deposit to the City within 10 business days following the City's request.
Should the actual Reimbursement Amount exceed the Deposit Amount,
Applicant agrees to promptly pay City any difference. Should the
Reimbursement Amount be less than the Deposit amount, City will refund
the Applicant any remaining Deposit amount to applicant within 30 days after
determining the Reimbursement Amount.
5. City Administrative Costs. Administrative costs incurred by City, including, without
limitation, staff time, legal costs, fees and services, must be reimbursed on a time
and materials basis based on current City reimbursement rates. Such costs will be
deducted by City from the Deposit Amount on a monthly basis.
Aoolicant Default. Should Applicant fail to perform any of its obligations under this
Agreement, then City may, at its option, pursue any one or more or all of the
remedies available to it under this Agreement, at law or in equity. Without limiting
any other remedy which may be available to it, if Applicant fails to perform any of
its obligations under this Agreement, City may cease performing its obligations
under this Agreement and may bring an action to recover all costs and expenses
incurred by the City in completing the studies, together with interest thereon from
the date incurred at the rate of 10% per annum.
Term. This Agreement will terminate either: (i) 12 months from the date the
Applicant's application is approved by the City; or (ii) when the Project is
disapproved or the application is formally withdrawn. Disapproval of the Project or
the Applicant's withdrawal of the application does not excuse Applicant from
reimbursing the City for the Project Costs incurred up to such date of disapproval
or withdrawal pursuant to this Agreement.
Compkance with Law. Applicant will, at its sole cost and expense, comply with all
of the requirements of all federal, state, and local authorities now in force, or which
may hereafter be in force, pertaining to this Agreement.
9. Waiver of Breach. Any express or implied waiver of a breach of any term of this
Agreement will not constitute a waiver of any further breach of the same or other
term of this Agreement.
10. Insolvency; Receiver. Either the appointment of a receiver to take possession of
all or substantially all of the assets of Applicant, or a general assignment by
Applicant for the benefit of creditors, or any action taken or offered by Applicant
under any insolvency or bankruptcy action, will constitute a breach of this
Agreement by Applicant, and in such event this Agreement will automatically cease
and terminate if Applicant or its successor or assign cease or fails to timely pay
any amount due and payable by Applicant (or its successor or assign) under this
Agreement.
Agreement No. 5936
11. Notices. Except as otherwise expressly provided by law, all notices or other
communications required or permitted by this Agreement or by law to be served
on or given to either party to this Agreement by the other party will be in writing
and will be deemed served when personally delivered to the party to whom they
are directed, or in lieu of the personal service, upon deposit in the United States
Mail, certified or registered mail, return receipt requested, postage prepaid,
addressed to:
Applicant Smoky Hollow Industries, LLC
Mark Telesz, Managing Member
612 East Franklin Avenue
EI Segundo, CA 90245
(310) 616-5040, extension no. 1
City at: City of EI Segundo
Attn: Gregg McClain, Planning Manager
350 Main Street
EI Segundo, CA 90245
(310) 524-2393
Either party may change its address for the purpose of this Section by giving written
notice of the change to the other party.
12. Acceptance oaf Electronic Signatures, The Parties agree that agreements ancillary
to this Agreement and related documents to be entered into in connection with this
Agreement will be considered signed when the signature of a party is delivered by
electronic mail in "portable document format" (i.e., .pdf) form, or by facsimile
transmission. Such signature will be deemed to be and treated in all respects as
an original signature.
13, Governina Law. This Agreement is made in and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving
this Agreement will be in Los Angeles County.
14. Partials Invalidity. Should any provision of this Agreement be held by a court of
competent jurisdiction to be either invalid or unenforceable, the remaining
provisions of this Agreement will remain in effect, unimpaired by the holding.
15 hntevration„ This instrument and its attachments constitute the sole agreement
between City and Applicant respecting the matters above and correctly sets forth
the obligations of City and Applicant.
16, Construction, The language of each part of this Agreement will be construed simply
and according to its fair meaning, and this Agreement will never be construed
either for or against either party.
17. Authority/Modification. The Parties represent and warrant that all necessary action
has been taken by the Parties to authorize the undersigned to execute this
Agreement and to engage in the actions described herein. This Agreement may be
modified by written amendment. The City's manager, or designee, may execute any
such amendment on behalf of City.
Agreement No. 5936
18. Counteroarls. This Agreement may be executed in any number of counterparts,
each of which will be an original, but all of which together will constitute one
instrument executed on the same date.
[Signatures on following page]
Agreement No. 5936
IN WITNESS WHEREOF the parties hereto have executed this contract the day
and year first hereinabove written.
City ofF Segundo, Smoky Hollow Industries, LLC
a M cli al Corporation. A California Limited Liability Company
c I^ n
Ma ager far�kTelesz, Mana ember
ATTEST.
T acy Weaver, City Clerk
APPROVED AS TO FORM:
U3 � � for
Mark D. Hensley,
City Attorney
{If Corporation or similar entity, needs two officer signatures or evidence that one signature
binds the company}