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CONTRACT 5419 Reimbursement Agreement CLOSED Agreement No. 5419 REIMBURSEMENT AGREEMENT This Reimbursement Agreement ("Agreement") is entered into as of September 2017 by and between the City of El Segundo, a general law city and municipal corporation (""City"), and Rosecrans Sepulveda Partners 4, LLC, a Delaware limited liability company(C'Developeej,,who agree as follows: I. . This Agreement is made with reference to the following facts and circumstances: a. Developer is in the process of preparing applications to develop a 6.7 acre property located on Rosecras Avenue,east of The Point development and west of an existing office/retail/theater development at the northeast corner of Nash Street and Rosecrans Avenue ("Project Site"). Tha property is commonly known as the Air Products site. b. Developer is seeking to change the zoning of the Project Site from Commercial Center(C-4) to Urban Mixed Use South(MU-S). In addition to a Change of Zone application, the other entitlements that will be required are a General Pian Amendment, Tentative Map and Site Plan Review.Developer also is considering seeking a Development Agreement and transferable development rights(the"Project"). C. In order for Developer to accomplish such development, City must assign certain City staff or consultants to complete a number of tasks including environmental review, zoning review, plan review, preparation of staff reports, and development of potential mitigation measures and projeet management duties (collectively, "Services') which will exceed the capacity of the current city staff. City believes it is in the public interest for Developer to pay for such Services. Owner understands that all wocic performed in relation to this project will be under the direction of the City, but at Owner's expense. 2. C&B " bursemeqL City estimates the Project Costs,which include but are not limited to, the environmental consultant and subconsultanta, contract plawer, staff time,and City Attorney's office review("Project Costs"')as being$ 00,000. 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 the City for the full amount of such actual costs and ex.penses in the manner provided in this Agreement. Upon completion of the Services, 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." I Agreement No. 5419 3. thod of RSjmbursement. a. Initial Deposit. Except as provided below, upon execution of this Agreement by City, Developer agrees to deposit with City $250,000 , C'Deposit Amount"), which represents 50 percent of the total estimated Reimburwment Amount.Costs associated with the project will be charged against the Deposit Amount. b. The Deposit Amount will be placed in a non-interest bearing trust account established by the City Manager. Developer understands and agrees that City will not pay interest to Developer on die Deposit Amount and Developer will not seek such interest payments from City. C. ReolenishnWt Dcoosit. Whenever the Deposit Amount balance falls below $50,000, the City may request the Developer to replenish the account ("Replenishment Deposit'" . Developer agrees to deliver a Replenishment Deposit to City within 10 business days following the City 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 4 below. If necessary, the City may redact any information from the City Attorney's bills that constitute attorney-client privileged information,would reveal attorney work product or would constitute a breach of City confidential personnel privacy requirements. d. 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 re:fimd Developer any remaining Deposit Amount to Developer within 30 days after determining the Reimbursement Amount. 4. City AdLninistrative Costs. Administrative costs incurred by City, including, without limitation, contract planner time, staff time, fees and services, must be reimbursed on a time and materials basis based on then current City reimbursement rates. A copy of the current rates am attached hereto as Exhibit A. Such rates are subject to change based on the City's discretion. If these rates change, City shalt provide Developer with the new fees in writing. City agrees to provide monthly accountings of the City"s administrative costs to Developer, Developer agrees that the City's administrative costs, as reflected in the monthly accountings, will be automatically withdrawn from the funds placed in the trust account. 5. P&v &JQper 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 which may be available to it, if Developer fails to perform any of its obligations under this Agreement, City may cease performing 2 Agreement No. 5419 its obligations under this Agreement and, after utilizing the Deposit Amount pursuant to the terns of this Agreement, may bring an action to recover all outstanding and unre:imbursed costs and expenses incurred by the City in completing the Services, together with interest thereon from the date incurred at the rate of I O%per annum, 6. Tenn. This agreement will terminate either: (i) 12 months from the date Developer's application is approved by the City; or (ii) when the Project i disapproved or the application is formally withdrawn. Disapproval of the Project or the Developer's withdrawal of the applications does not excuse Developer from reimbursing the City for the Project Costs incurred up to such date of disapproval or withdrawal pursuant to this A,greement. 7.. Conflicts qf Interest a. Q=Itants 'Ul+"ork for Clty. City has sole discretion to direct the work and evaluate the performance of the employees and :contractors assigned to work on the Project,and City retains the sole right to terminate or replace any such employees or contractors. Notwithstanding the fact that Developer provides funding for the perforruance of the reports and studies provided hereunder, such documents prepared hereunder or any approvals granted reflect the City's independent judgment, and City has no obligation to approve the Project. The City agrees that it will inform Developer in advance of making any such personnel, contractor or subcontractor changes. b. py a h-,Develover;.Developer represents and warrants that: I. For the 12-month period preceding the submission of its application for the Project, it has not entered into any agreement to pay financial consideration to the City's consultant retained for the Project. ii. For a period of 12 months after final resolution of Developer's application for the Project, neither Developer nor any of its agents, shall enter into any direct financial relationship with any consultant retained by the City for the Project,or with any City official,agent or employee. iii. It has not entered into any arrangement to pay financial consideration to, and has not trade any payment to, and City, official, agent, or employee that would create a legally cognizable conflict of interest as defined in the Political Reform Act (California Government Code§§87100 et seq.). C. onsultanl. Developer may only communicate with consultants retained hereunder with the permission of the City's Director 3 Agreement No. 5419 of Planning, and Building Safety. In no case may Developer direct consultant as to how to undertake or prepare consultant's work product. 8. Q=liance with LdM. 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 ca ate.Any express or implied waiver r of a breach of any term of this Agreement will not constitute a waiver of any further breach of the some or other term of this Agreement. 10, lnsolvencvLRSggjM. 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 if Developer or its successor or assign ceases or fails to timely pay any amount due and payable by Developer(or its successor or assip) under this agreement. 11. Npjj=. 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: Alex J.Rose Rosecrans Sepulveda Partners 4,LLC 2041 Rosecrans Ave,P.O.Box 916 El Segundo,California 90245 310-640-1520 x327 City at. City of El Segundo Gregg McClain,Planning Manager 350 Main Street EI Segundo,CA 90245 310/524-2393 Either party may change its address for the purpose of this Section by giving written notice of the change to the other party. 12. Acccotance of EleqU2&c_SjgMLu_M. The Parties agree that agreements anciflary 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 4 Agreement No. 5419 facsimile transmission. Such signature will be treated in all respects as having the same effect as an original signature. 13. QgvemingJAw. 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. Portigl,JnXdift. 'Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid or unenforceable, the remainhV provisions of this Agreement will remain in effect,unimpaired by the holding. 15. lormMm. This instrument and its attachments constitute the sole agreement between City and Developer res tini� the matters above and correctly sets forth the-obliations of City and Developer, 16. c onstruciiru. The language of each part of this Agjwment will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party. 17. The Parties represent and warrant that all necessary action been then 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. CounternartiThis Apreement may be executed in any number of counterparts, each of which will be an orierinal, but all of which together will constitute rine 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, Rosecrans 96pulved4ftaners 4,LLC am ipal corporation. �' +G C nter,City Manager Alex I. Rose,its „�'w, � ATTEST: Tracy ear, ty Clerk S Agreement No. 5419 APPROVED AS TO FORM; Mark 61 H cy,Ciq,'A�t Oiney 2L 6