CONTRACT 5980 Reimbursement Agreement CLOSEDAgreement No. 5980
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") is entered into as of October J 2020, by
and between the City of EI Segundo, a general law city and municipal corporation ("City"),
and 141 Eucalyptus LLC, a California limited liability company ("Applicant/Developer").
The parties agree as follows:
Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. The Applicant/Developer intends to demolish an existing building and
construct a new 7,000 square -foot office building at 141 Eucalyptus Drive
(the "Project").
b. 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;
zoning review, plans review for compliance with City standards, building
code compliance, preparation of reports, and project management duties;
the reasonable processing costs related to review and inspection of the
Project; and the costs of implementing the conditions of approval
(collectively, "Project Costs").
C. City believes it is in the public interest for Applicant/Developer to pay such
Project Costs. Applicant/Developer understands that all work performed by
the City related to the Project will be under the direction of City, but at
Applicant/Developer's expense.
2. Citv Reimbursement. Applicant/Developer agrees to fully reimburse the City for
the Project Costs. City has estimated the initial Project Costs as being $10,000.
However, the Applicant/Developer acknowledges that the actual amount of such
Project Costs may be different, the Applicant/Developer agrees to reimburse the
City for the full amount of the actual costs of such Project Costs in the manner
provided in this Agreement. City will provide Applicant/Developer with an
accounting of the Project Costs on a monthly basis, which accounting the
Applicant/Developer agrees will be conclusive, in the absence of manifest error.
The total cost of the Project Costs, as disclosed by the accounting, is called the
"Reimbursement Amount."
3. Method of Reimbursement.
Initial Deoosit. Except as provided below, upon execution of this
Agreement, Applicant/Developer agrees to deposit with City $10,000
("Deposit Amount") which represents 100 percent of the total estimated
initial Reimbursement Amount. Costs associated with the Project will be
charged against the deposit amount.
The Deposit Amount will be placed in a non-interest bearing trust account
established by the City Manager. Applicant/Developer understands and
agrees that City will not pay interest to Applicant/Developer on the Deposit
Agreement No. 5980
Amount and Applicant/Developer will not seek such interest payments from
City.
C. Reolenishn° ent Doposit.. Whenever the Deposit Amount balance falls below
$500, the City may request the Applicant/Developer to replenish the
amount ("Replenishment Deposit"). Applicant/Developer agrees to deliver
a Replenishment Deposit to City within 10 business days following the
City's request.
d. Should the actual Reimbursement Amount exceed the Deposit Amount,
Applicant/Developer agrees to promptly pay City any difference. Should
the Reimbursement Amount be less than the Deposit Amount, City will
refund Applicant/Developer any remaining Deposit Amount to
Applicant/Developer within 30 days after determining the Reimbursement
Amount.
4. Cily Administrative, Costs. Administrative costs incurred by City, including, but not
limited to, 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.
5. AL)Oicanl/Develowr Deed .rll. Should Applicant/Developer 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/Developer fails to pay either the Deposit Amount or a Replenishment
Deposit, or fails to fully reimburse the City for the Project Costs, 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.
6. Term. This Agreement will terminate either (i) 36 months from the commencement
date of this agreement, or at date of Applicant/Developer's building permit final.
The term of this agreement can be extended by mutual agreement of both parties
for the life of a valid building permit related to the primary building described in
Recital 1 a above.
7. Conflicts of Interest.
a. Consultants Work for Cil:v. City has sole discretion to direct the work and
evaluate the performance of the employees and contractors assigned to
work on the Project, and City retains the sole right to terminate or replace
any such employees or contractors, Notwithstanding the fact that
Applicant/Developer provides funding for the performance of the reports
and studies provided hereunder, such documents prepared hereunder or
any approvals granted reflect the City's independent judgment, and City
has no obligation to approve the Project.
b, No IErnolovrnont by Applicant/Developer represents
and warrants that:
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Agreement No. 5980
For the 12 -month period preceding the submission of its application
for the Project, it has not entered into any arrangement to pay
finance consideration to, and has not made any payment to, the
City's consultants retained for the Project.
For a period of 12 months after final resolution of
Applicant/Developer's application for the Project, neither
Applicant/Developer, nor any of its representatives, agents or other
persons acting in concert with Applicant/Developer, shall enter into
any financial relationship with any consultants, or with any City
official, agent or employee. Nor, during such period, shall
Applicant/Developer propose to enter into any future relationship
with the consultants, or with any City official, agent or employee.
iii. 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 §§ 87100 et seq.).
Communications with Consultants. Applicant/Developer may only
communicate with consultants retained hereunder with the permission of
the City's Director of Planning and Building Safety. In no case may
Applicant/Developer direct consultant as to how to undertake or prepare
consultant's work product.
8. Compliance with Law. Applicant/Developer 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/Developer, or a general assignment
by Applicant/Developer for the benefit of creditors, or any action taken or offered
by Applicant/Developer under any insolvency or bankruptcy action, will constitute
a breach of this Agreement by Applicant/Developer, and in such event this
Agreement will automatically cease and terminate if Applicant/Developer or its
successor or assign cease or fails to timely pay any amount due and payable by
Applicant/Developer (or its successor or assign) under this Agreement.
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:
Agreement No. 5980
Applicant/ 141 Eucalyptus LLC
Developer at: c/o Robert DiGenova
202 Via Anita
Redondo Beach, CA 90277
310-780-1280
City at: City of EI Segundo
Attn: Paul Samaras, Principal Planner
350 Main Street
EI Segundo, CA 90245
310-524-2340
Either party may change its address for the purpose of this Section by giving written
notice of the change to the other party.
12. Accg.I)tanc (-, 0 EGec:tronic 'SicinatUros. 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. Governing 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. Partial Invaliditv. 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. Integration. This instrument and its attachments constitute the sole agreement
between City and Applicant/Developer respecting the matters above and correctly
sets forth the obligations of City and Applicant/Developer.
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. 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.
18. Counteroarts, 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]
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Agreement No. 5980
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day
and year first hereinabove written.
CITY OF EL SEGUNDO.
A municipal corporation.
Sco Mitnick, City Manager
ATTEST:
�Z—
Trac Weaver, City Clerk
APPROVED AS TO FORM:
U:� �
N for
Mark D. Hensley, t ttorney
141 EUCALYPTUS LLC
A California Limited Liability Company
.' Roberto DiGOO, a, member