CONTRACT 3293 Reimbursement Agreement CLOSED3293.. ,
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is entered into as of December 8, 2003
by and between the CITY OF EL SEGUNDO, a general law city and municipal corporation
( "City "), and MAR VENTURES, INC., a California corporation ( "Developer "), who agree as
follows:
1. RECITALS. This Agreement is made with reference to the following facts and
circumstances:
A. Developer owns or has an interest in the real property generally located at 850 S.
Sepulveda Boulevard (Southeast corner of Rosecrans Avenue and Sepulveda Boulevard).
B. Developer is seeking to develop its property for commercial and retail uses
( "Project ").
C. In order for Developer to accomplish such development, City must complete a
number of environmental and other, similar, studies in order to be fully informed
regarding the impact of development upon City's jurisdiction.
D. City believes it is in the public interest for Developer to pay for such services.
2. CITY ASSISTANCE. Developer and City agree that City will cause to have completed all
studies and other consulting needed to prepare appropriate environmental review of Developer's
project in accordance with the California Environmental Quality Act ( "CEQA ") including,
without limitation, a draft Environmental Impact Report ( "EIR "-, collectively, "Studies ").
Developer understands and agrees that the City shall have hill control and authority over the
CEQA review process and that the City does not represent or warrant that such will be completed
within any particular time frame nor that it will reflect any particular result.
3. CITY REIMBURSEMENT. City estimates the costs and expenses of completing the
Studies as being approximately $295,636. However, Developer acknowledges that the actual
amount of such costs and expenses may be different. Nonetheless, even though the actual
amount of such costs and expenses may be different, Developer agrees to reimburse City for the
full amount of such actual costs and expenses in the manner provided in this Agreement. Upon
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completion of the Studies, City will provide Developer with an accounting of those costs and
expenses, which accounting Developer agrees will be conclusive in the absence of manifest
error. The total of the costs and expenses, as disclosed by the accounting, is called the
"Reimbursement Amount ".
4. METHOD OF REiMBURSE1%1 ENT. Except as provided below, upon execution of this
Agreement, Developer agrees to deposit with City $73,909 which represents twenty -five percent
(25 %) of the estimated Reimbursement Amount. Thereafter, Developer agrees to make
additional payments to City of twenty -five percent (25 %) each (amounting to $73,909) when
25 %, 50% and 75% of the contract costs have been invoiced to the City. (collectively, "Deposit
Amount "). Should the actual Reimbursement Amount exceed the Deposit Amount, Developer
agrees to promptly pay City any difference. Should the Reimbursement Amount be less than the
Deposit Amount, City will refund Developer any remaining Deposit Amount to Developer
within thirty (30) days after determining the total Reimbursement Amount.
5. CITY LEGAL COSTS. Legal fees and costs incurred by City must be reimbursed on a
time and materials basis based on current City reimbursement rates and retainer agreements.
Developer agrees that it will pay for sL►ch costs on a monthly basis within thirty (30) days of
receiving an invoice from City. The City shall only be required to submit to the developer an
invoice reflecting the total legal fees and costs being invoiced each month which, due to the
attorney - client privilege between the City and its legal counsel, shall not include a detailed
description of the services rendered.
6. DEPOSIT AMOUNT. City agrees to place the Deposit Amount and all subsequent
payments into a separate, non - interest bearing, account. Developer understands and agrees that
City will not pay interest to Developer on the Deposit Amount and Developer will not seek such
interest payments frorn City.
7. DEVELOPER DEFAULT. Should 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
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which may be available to it, if Developer 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 City in completing the Studies, together with
interest thereon from the date incurred at the rate of 10% per annum.
8. COMPLIANCE WiTH LAW. 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 Developer, or a general assignment by Developer for the
benefit of creditors, or any action taken or offered by Developer under any insolvency or
bankruptcy action, will constitute a breach of this Agreement by Developer, and in such event
this Agreement will automatically cease and terminate.
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:
Developer at: Allan Mackenzie, President
Mar Ventures, Inc.
2050 W. 190 °i Street, Suite 201
Torrance, CA 90504
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City at: Mark D. Hensley, City Attorney
City of El Segundo
350 Main Street
El Segundo, CA 90245
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 OF FACSIMILE 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 facsimile
transmission. Such facsimile signature will be treated in all respects as having the same effect as
an original signature.
13. GOVERNING LAW. This Agreement has been 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 Developer respecting the matters above and correctly sets forth the obligations
of City and Developer. Any Agreement or representations respecting the Property or its
licensing by City to Developer not expressly set forth in this instrument are void.
16. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
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17. AUTHORITYIMODIFICATION. 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.
City's city manager, or designee, may execute any such amendment on behalf of City.
18. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
19. COUNTERPARTS. This Agreement may be executed in any number or counterparts, each
of which will be an original, but all of which together will constitute one instrument executed on
the same date.
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO,
a municipal corporation.
a �, ity Manager
ATTEST:
Cindy MWrtesen, City C erk
APPROVED AS TO FORM:
Mark D. Hensl , ity Attorney,
Karl H. Be >er,
Assistant City Attorney
MAR VENTURES, INC.,
a Cali a - orporation.
z
Allan Mackenzie, President
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