CONTRACT 5182 Reimbursement AgreementAgreement No. 5182
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is entered into as of May
2016 by and between the City of El Segundo, a general law city and municipal
corporation ( "City "), and D.R. Horton CA2, Inc. a California Corporation ( "Applicant "),
who agree as follows:
1 Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. Applicant is in escrow to acquire real property generally located at 540 E.
Imperial Avenue.
K Applicant is seeking to develop the property and construct approximately
58 residential units (24 single - family residences and 34 multi - family
units).
C. Applicant is seeking approval of a Specific Plan Amendment, a Tentative
Tract Map Amendment, and a Development Agreement Amendment (the
"Amendments ") to:
1. Increase the lot area, floor area ratio (FAR), and height on the multi-
family units; and
2. Allow greater flexibility in providing modulation of the second floor
exterior perimeter walls.
d. In order for Applicant to accomplish the Amendments allowing such
development, City must assign certain City staff or consultants to
complete a number of tasks including, to the extent required by the
Amendments, environmental review, zoning review, preliminary design
review and analysis of plan submittals, review for compliance with City
standards, building code compliance, analysis of technical studies,
preparation of staff reports, development of potential mitigation measures,
meetings and research of various issue areas, and project management
duties (collectively, "Services ") which will exceed the capacity of the
current city staff.
e. City believes it is in the public interest for Applicant to pay for such
Services.
2. City lertnlarwt Bement. City has estimated the costs and expenses of completing the
Services as being approximately $35,000. This amount is in addition to the $3,500
paid for the initial Preliminary Review which covered two review meetings.
However, the Applicant and City acknowledge that the actual amount of such
costs and expenses may be different. Nonetheless, even though the actual amount
Agreement No. 5182
of such costs and expenses may be different, the Applicant 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 Services, City will provide
Applicant with an accounting of those costs and expenses, which accounting the
Applicant 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." Notwithstanding anything to the contrary contained
in this Agreement, Applicant may elect in its sole discretion at any time to
withdraw its application for the Amendments and, upon receiving Applicant's
written notice of such election, City will promptly stop providing the Services and
Applicant will not be responsible any costs for Services incurred after such
written notice has been provided to the City.
Method of Reimbursement.
a. Except as provided below, upon execution of this Agreement, Applicant
agrees to deposit with City $17,500.00 ( "Deposit Amount ") which
represents fifty percent (50 %) of the estimated Reimbursement Amount.
Every three months after executing this Agreement, Applicant agrees to
deposit an additional $8,510 to the Deposit Amount, until the Applicant
has deposited the full amount of $35,000. 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 Applicant any remaining
Deposit AnIount to Applicant within thirty (30) 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. 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. Costs
associated with the Activities will be charged against the deposit amount.
The City may require Applicant to replenish the amount should the balance
fall below $3,000.
4. Cit Adtt�inistrtive Costa. 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. Applicant agrees that
it will pay for such costs on a monthly basis within thirty (30) days of receiving
an invoice from City.
5. APatk Lm 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
Agreement No. 5182
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. Lompliance 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.
7. U "a ygL_cjjf 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.
8. 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.
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:
Applicant at:
D.R. Horton CA2, Inc.
Attn: John L. Scull and Matthew Christian Hanson
535 N. Brand Blvd Ste. 900
Glendale, CA 91203
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.
10. Acce )tance of Facsiniile Si matgres. 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.
Agreement No. 5182
11. 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.
11 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.
13. 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. Any Agreement or representations
respecting the Property by City to Applicant 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. Authorit /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 munici al c rnora
, City Manager
T'TEST;
Tracy' Weave , City Clerk
D.R. Horton CA2, Inc.,
a California ,,,, "
4-1—
R
Division
cull," Vice
G and President of the
Agreement No. 5182
APPROVED AS TO FORM:
Mai D. Hensley, C,i Carney
Rev 12/07/09
Agreement No. 5182
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A notar y p ublic or other officer completing this certificate Verifies only the iden tity
of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF California ) SS
COUNTY OF Los Angeles )
On
j ,, , w olb , before me, ,Loanne Marsh, Notary Public, personally appeared
Z-" ' who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged
to me that he /�' executed the same in his /;xf authorized capacity�jes), and that by his /jam
signature on the instrument the persor�f, or the entity upon behalf of which the person' acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
l wy Commission Expires: Aril 24 2019
Notary Name: Joanne Marsh
Notary Registration Number: 2108434
County of Principal Place of Business: Leos Angeles
JOANNE MARSH
Commission # 2108434
Notary Public - California D
Los Angeles County
M Comm. Ex Ires A r 24.,. 2019
This area for official notarial seal
Notary Phone: 818 - 334 -1924