CONTRACT 3600 Reimbursement Agreement CLOSED36 0 eu
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is entered into as of May 16, 2006 by
and between the City of El Segundo, a general law city and municipal corporation ( "City "), and
Walnut Partners, LLC ( "Owner "), who agree as follows:
1. Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. Owner owns real property generally located at 888 North Sepulveda.
b. Owner is seeking to develop its property and construct approximately 140 Room
Hotel on the property
C. In order for Owner 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 Owner to pay for such services.
2. City Assistance. Owner and City agree that the City will cause to have completed the
following at Owner's cost (collectively, "Studies "):
a. Traffic Counts $-
b. Traffic Impact Study (City Review) $5,000
C. Cultural Resources Study $
d. Biological Work Program $--
e. City Attorney $20,000
f. Staff time fees and services on time and materials basis $20,000
3. City Reimbursement. City has estimated the costs and expenses of completing the
Studies as being approximately $45,000. However, the Owner 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, the Owner agrees to
reimburse the City for the full amount of such actual costs and expenses in the manner
provided in this Agreement. Upon completion of the Studies, City will provide Owner
with an accounting of those costs and expenses, which accounting the Owner 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."
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4. Method of Reimbursement. Except as provided below, upon execution of this
Agreement, Owner agrees to deposit with City $45,000 -( "Deposit Amount "), which
represents the estimated Reimbursement Amount. Should the actual Reimbursement
Amount exceed the Deposit Amount, Owner agrees to promptly pay City any difference.
Should the Reimbursement Amount be less than the Deposit Amount, City will refund
Owner any remaining Deposit Amount to Owner within thirty (30) days after determining
the Reimbursement Amount.
5. City Administrative Costs. Administrative costs incurred by City, including, without
limitation, staff time, fees and services, must be reimbursed on a time and materials basis
based on current City reimbursement rates. Owner agrees that it will pay for such costs
on a monthly basis within thirty (30) days of receiving an invoice from City.
6. Deposit Amount. City agrees to place the Deposit Amount into a separate, non - interest
bearing, account. Owner understands and agrees that City will not pay interest to Owner
on the Deposit Amount and Owner will not seek such interest payments from City.
7. Owner Default. Should Owner 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 Owner 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.
8. Compliance with Law. Owner 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 Owner, or a general assignment by Owner for the benefit
of creditors, or any action taken or offered by Owner under any insolvency or bankruptcy
action, will constitute a breach of this Agreement by Owner, 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:
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Owner at: Walnut Partners, LLC
c/o RREEF America, L.L.0
Attn: Ross Berry
101 California Street, 26`h Floor
San Francisco, CA 94111
City at: City of El Segundo
Attn: Director of Planning and Building Safety
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 Owner respecting the matters above and correctly sets forth the obligations of
City and Owner. Any Agreement or representations respecting the Property or its
licensing by City to Owner not expressly set forth in this instrument are void.
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. City's city manager, or designee, may execute any such amendment on behalf
of the 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.
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IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO
By: 4
Jeff Ste rt, City Manager
ATTEST
Ck* .�,N --
Cindy ortesen, City Clerk
Approved as to- ,1Orin:
Mark D. Hensley, 'ty tg ne
By. r � � v
Karl H. terg /, Assistant Cit Attorney
Walnut Partners, LLC,4t- 6elaware limited liability
company
By: Calsmart L.L.C., a Delaware limited liability
company
Its: Sole Member
By: REEFF Americ C., a De ware limited
liability comp
By:
Nam s r l ez I
Its:
717401.01 /LA
14292- 002 /5 -2 -06 /pap /pap -4-