CONTRACT 4862 CLOSEDREIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is entered into as of May 28,
2015 by and between the City of El Segundo, a general law city and municipal
corporation ( "City "), and 400 Duley Road Property, LLC, a Delaware limited liability
company ( "Owner "), who agree as follows:
1. Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. Owner owns real properties generally located at 400 Duley Road, which is
located at the southeast corner of Duley Road and Mariposa Avenue.
Owner is seeking to modify a development that was previously approved
under Environmental Assessment EA -1040 and Subdivision No. SUB 13-
09 (Vesting Tentative Map No. 72745). The Owner proposes to modify
the project that was approved for up to 70,000 square feet of office
condominiums within five (5) buildings to include medical office use in
one of the buildings. Trip generation rates and parking for Medical Office
use are higher that rates for General Office. In addition the Owner
proposes to build subterranean parking on a portion of the site to
accommodate the additional required parking. The Owner is requesting
that the City conduct the environmental review which includes an updated
traffic study to assess the impacts of the proposed modification. The
proposed modification will add additional square footage to the project
however total project size will remain under 70,000 square feet as
previously approved.
b. In order for Owner to accomplish such development, City must assign
certain City staff or consultants to complete a number of tasks including
environmental review, zoning review, plans review for compliance with
City standards, building code compliance, analysis of technical studies,
preparation of staff reports, development of potential mitigation measures,
and project management duties (collectively, "Services ") which will
exceed the capacity of the current city staff.
C. City believes it is in the public interest for Owner to pay for such Services.
2, City Reimbursement. City has estimated the costs and expenses of completing the
Services as being approximately $50,000 (of which $36,100 is estimated for
environmental consulting services). 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. The City must notify the Owner
before incurring expenses in excess of $50,000. Upon completion of the Services,
4862 ImM
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."
Method of Reimbursement.
a. Except as provided below, upon execution of this Agreement, Owner
agrees to deposit with the City $50,000 ( "Deposit Amount ") which
represents the estimated cost of the Reimbursement Amount. Should the
actual Reimbursement Amount exceed the Deposit Amount, Owner agrees
to promptly pay City any difference in compliance with Section 2 above.
Should the Reimbursement Amount be less than the Deposit Amount, City
will refund Owner any remaining Deposit Amount to Owner within thirty
(3 0) days after determining the Reimbursement Amount.
b. The Deposit Amount will be placed in a non - interest bearing trust account
established by the City Manager or his/her designee. 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. Costs
associated with the Activities will be charged against the deposit amount.
The City may require Owner to replenish the amount should the balance fall
below $25,000.
4. Citv Administrative Costs. Administrative costs incurred by City, including,
without limitation, staff time fees and services, and legal costs, 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.
5. 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.
6, Corn liance 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.
7. Waiver of Breach. Any express or implied waiver of a breach of any teen of this
Agreement will not constitute a waiver of any further breach of the same or other
term of this Agreement.
lnsolvenc 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.
9, 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:
Owner at: Wm. Gregory Geiger and Sean Armstrong
c/o Westport Capital Partners
2121 Rosecrans Avenue, Suite 4325
El Segundo, CA 90245
and
Jan A. Holtze
Live Oak Properties, LLC
820 Manhattan Avenue, Suite 205
Manhattan Beach, CA 90266
City at: City of El Segundo
Attn: Director of Planning and Building Safety
And Planning Manager
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.
10. �of Su, 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.
11. Governing w, 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.
12. Partial Invalidit . 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.
13. 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.
14. 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.
15. 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 City.
16. 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the
day and year first hereinabove written.
City of El Segundo,
a immicival coroora
, City Manager
ATTEST:
APPROVED AS TO FORM:
MARK D. HENSLEY, City Attorney
400 Duley Road Property LLC,
a Delaware limited liability company
Wm. Gregory
Sean Anfistroii
Vice President
f1
By �P—I- ---- — - Av—�,
David
Assistant City Attorney
P:1Planning & Building Safety \0 Planning - O1d\Consultant Ping Services\Reimbursement Agreements1400Duley
RoadAddendum \ReimbursementAgreement Addendum 05122015.doc