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CONTRACT 6090 Reimbursement Agreement CLOSEDAgreement No. 6090 REIMBURSEMENT AGREEMENT This Reimbursement Agreement ("Agreement") is entered into as of May 2021 by and between the City of El Segundo, a general law city and municipal corporation ("City"), and CDC East Campus 1 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: a. The Applicant plans to file an application for an specific plan amendment relating to approval of a self -storage use (the "Project") in the El Segundo South Campus Specific Plan ("Specific Plan") area. Presently, the Applicant is seeking only a pre -review process and policy direction concerning its proposed changes to permitted use in the Specific Plan area for purposes of the Project. No final permitting or CEQA-related approval processes are requested at this time. The Project will be presented to the Planning Commission for a recommendation to the Council and the Council cannot approve the Project but may reject the Project or send it back to staff with comments and issues to study for purposes of allowing the Applicant to determine whether it wants to proceed with a complete application to be reviewed by the Planning Commission and then submitted to the Council for its consideration. b. Evaluation of the Project proposal may require review and analysis by third -party professional consultants, the city attorney's office, and city staff in order to complete a number of tasks including, without limitation, conducting zoning review, reviewing plans for compliance with City standards and building codes, and other pre -permitting staff review processes (collectively, "Project Costs"). City believes it is in the public interest for Applicant to pay for such Project Costs . Applicant understands that all work performed by third -party consultants, including legal fees and costs, related to the Project will be under the direction of City but at Applicant's expense. City will provide Applicant with a monthly accounting statement identifying such third -party consultant costs to be paid by Applicant. The City shall only include in these quarterly statements the amount of legal fees and costs that the City incurs for services identified in the Agreement, but Applicant will not be provided with the details of the descriptions of the City's legal fees and costs as such is considered attorney -client privileged information with the City holding the privilege to such billing information. 2. City Reimbursement. Applicant agrees to fully reimburse the City for the Project Costs. The City has estimated the Project Costs for processing as being approximately $15,000. 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 Applicant shall have an opportunity to review and provide comments for the City's consideration. As discussed in Section 1(c), if the Parties do not agree on the cost identified in the monthly accounting statement, the Parties will meet to discuss any disputed costs and attempt to resolve any issues through compromise, and if not resolved, then the Applicant may terminate in accordance with Section 7 below. The total of the costs of the Project, as disclosed by the accounting, is called the "Reimbursement Amount." 3. City has No Obfigation to Approve Protect. By signing this agreement, Applicant acknowledges and understands that this Agreement in no way obligates the City to approve any Agreement No. 6090 of the future 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 may arise based on services provided pursuant to this Agreement and needed to effectuate the Project. 4. Method of Reimbursement. a. The City shall work with any third -party consultants, except for legal, to provide estimated costs and scope for services related to Project Costs, which shall be shared with Applicant. Applicant shall have the opportunity to review and comment on the estimated costs and scope for services, and in the event of an unresolved concern the Applicant may terminate in accordance with Section 7 below. b. Except as provided below, upon execution of this Agreement, Applicant agrees to deposit with City $15,000 ("Deposit Amount") which represents 100 percent of the estimated Reimbursement Amount for processing the application. Project Costs associated with the Project will be charged against the deposit amount. c. The Deposit Amount will be placed in a non -interest bearing trust account established by the City Manager. Applicant understands and agrees that City will not pay interest to Applicant on the Deposit Amount and Applicant will not seek such interest payments from City. d. Replenishment Deposit. Whenever the Deposit Amount balance falls below $1,000.00, 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. At the time such replenishment request is made, the City shall provide Developer with a copy of all costs to date, to the extent they have not already been provided by Section 5 below. With respect to the City Attorney's billing, the City is not required to provide copies of all or any part of the City Attorney's invoices and will provide Developer only with the total amount billed by the City Attorney. e. 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, any staff time and consulting fees and costs for the services described in Section 1, above, must be reimbursed on a time and materials basis based on current City reimbursement rates. A copy of the current rates are attached hereto as Exhibit A. Such rates are subject to change based on the City's discretion. If these rates change, City shall provide Developer with the new fees in writing. City agrees to provide monthly accountings of the City's administrative costs to Developer. Such accounting shall be provide by City to Applicant within 30 days of the end of a month. Such costs will be deducted by City from the Deposit Amount on a monthly basis. Agreement No. 6090 6. Applicant 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 its efforts contemplated by this Agreement, together with interest thereon from the date incurred at the rate of 10% per annum. 7. Term. This Agreement will terminate either: (i) three months from the date the Applicant's pre -review process is completed by the City and the City's policy determination is communicated to the Applicant; or (ii) when the Applicant makes a written request to formally withdraw its request for pre -review. The Applicant's withdrawal of the request for pre -review does not excuse Applicant from reimbursing the City for the Project Costs incurred up to such date of withdrawal pursuant to this Agreement. 8. Compliance 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 ceases or fails to timely pay any amount due and payable by Applicant (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: Applicant Alex J. Rose, Senior Vice President Developer at: CDC East Campus 1 LLC 2041 Rosecrans Avenue, Suite 200 El Segundo, CA 90245 (310) 640-1520 City at: City of El Segundo Attn: Development Services Department 350 Main Street El Segundo, CA 90245 (310) 524-23945 Either party may change its address for the purpose of this Section by giving written notice of the change to the other party. ■ Agreement No. 6090 12. Acceptance of 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. Governinq 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 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. Integration. 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. 18. Counterparts. 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] J4 Agreement No. 6090 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL SEGUNDO, A municipal corporation. Sc tt Mitnick, City Manager ATTEST: APPROVED AS TO FORM'. Mark . Hensley, City Attorney CDC Mar East Campus 1 LLC A California Limited Liability Company By: CDC East Campus 1, LLC, Managing Member By: Continental Development Corporation, Managing Member A Aldo J. Rose, nior Vice President, Continental Development Corporation