CONTRACT 5528 Reimbursement Agreement CLOSED Agreement No. 5528
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") is entered into as of May , 2018, by and
between the City of El Segundo, a general law city and municipal corporation ("City"), and
Segundo Restaurant Partnership, LP, a California Limited Partnership ("Applicant/Developer").
The parties agree as follows:
1. Recitals.This Agreement is made with reference to the following facts and circumstances:
a. The Applicant/Developer has filed an application to demolish an existing±9,500
st.��q'ultre fool restaurant building; merge two lots; construct a new ±55,000 square-
foot, hotel consisting of It 4 rooms (keys), a lobby, a gym for hotel
guests, laundry facility and an employee break room; and an underground
parking garage with approximately 20,000 cubic yards of grading consisting of cut
and export; on property located at 703 and 739 N. Sepulveda Boulevard (APN
4139-018- 001 &-002). The Applicant/Developer also requests Zone Text
Amendments to ESMC Section 15-5C-7 (Site Development Standards)regarding
height and building area, and to ESMC Chapter 20 regarding Transfer of
Development Rights (the"Project").
b. The Project requires environmental services such as environmental review,
preparation of environmental technical reports and documents in accordance with
the California Environmental Quality Act("CEQA"); thus,requiring the retention
and costs of professional consultants (collectively, "Environmental
Documentation Costs"). Such Environmental Documentation Costs are further
described in Exhibit"A"attached hereto and incorporated by this reference.
C. City believes it is in the public interest for Applicant/Developer to pay such Project
Costs. Applicant/Developer understands that all work performed by the City
related to the Project will be under the direction of City, but at
Applicant/Developer's expense.
2. City Reirnburseine.tit Applicant/Developer agrees to frilly reimburse the City for the
Environmental Documentation Costs. City has estimated the total Environmental
Documentation Costs as being $80,808.00. This amount includes the environmental
consulting services to be performed by Rincon Consultants, Inc. as described in Exhibit
"A"(estimated at$70,268.00),plus an additional Contingency Amount of$10,540.00 for
additional work that may be required and not included in the environmental consulting
services to be performed by Rincon Consultants, Inc. as described in Exhibit "A".
However, the Applicant/Developer acknowledges that the actual amount of such
Environmental Services Costs may be different. Nonetheless, even though the actual
amount of such Project Costs may be different, the Applicant/Developer agrees to
reimburse the City for the full amount of the actual costs of such Project Costs in the
manner provided in this Agreement. City will provide Applicant/Developer with an
accounting of the Project Costs on a monthly basis, which accounting the
Applicant/Developer agrees will be conclusive, in the absence of manifest error. The total
cost of the Environmental Documentation Costs, as disclosed by the accounting, is called
the"Reimbursement Amount."
"a
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Agreement No. 5528
3. Method of Reimbursement.
a. Initials Dekscxsit. Except as provided below, upon execution of this Agreement,
Applicant/Developer agrees to deposit with City$80,808.00 ("Deposit Amount")
which represents 100 percent of the total estimated Reimbursement Amount.
Environmental Documentation 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.Applicant/Developer understands and agrees that
City will not pay interest to Applicant/Developer on the Deposit Amount and
Applicant/Developer will not seek such interest payments from City.
C. Re i;hllaw m7tDeoosit;. Whenever the Deposit Amount balance falls below
$5,000, the C .._City may request the Applicant/Developer to replenish the amount
("Replenishment Deposit"). Applicant/Developer agrees to deliver a
Replenishment Deposit to City within 10 business days following the City's
request.
d. Should the actual Reimbursement Amount exceed the Deposit Amount,
Applicant/Developer agrees to promptly pay City any difference. Should the
Reimbursement Amount be less than the Deposit Amount, City will refund
Applicant/Developer any remaining Deposit Amount to Applicant/Developer
within 30 days after determining the Reimbursement Amount.
4. Applicant/Develover Deftrult. Should Applicant/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 Applicant/Developer fails to pay either
the Deposit Amount or a Replenishment Deposit, or fails to fully reimburse the City for
the Project Costs and/or the Environmental Documentation Costs, 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.
5.. Term. This Agreement will terminate either (i) 1.2 niorrths frons the date
plrli �rtR/I r rrr to 'r"'s r licatior7
has becri aonr°ovcd by the City;(ii)when the Project has
been disapproved by the City; or, (iii) the application has been formally withdrawn.
Disapproval of the Project or the Applicant/Developer's withdrawal of the application does
not excuse Applicant/Developer from reimbursing the City for the Environmental
Documentation Costs incurred up to such date of disapproval or withdrawal pursuant to
this Agreement.
6. Conflicts of Interest.
a. Consultants Work For City. 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 Applicant/Developer provides funding
for the performance of the reports and studies provided hereunder,such documents
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Agreement No. 5528
prepared hereunder or any approvals granted reflect the City's independent
judgment, and City has no obligation to approve the Project.
b. N ,Etnp,l )Ya� cr�,t 1)y 11�s rltJi cya leper. Applicant/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 arrangement to pay finance
consideration to, and has not made any payment to,the City's consultants
retained for the Project.
ii. For a period of 12 months after final resolution of Applicant/Developer's
application for the Project, neither Applicant/Developer, nor any of its
representatives, agents or other persons acting in concert with
Applicant/Developer, shall enter into any financial relationship with any
consultants,or with any City official,agent or employee.Nor,during such
period, shall Applicant/Developer propose to enter into any future
relationship with the consultants, or with any City official, agent or
employee.
iii. It has not entered into any arrangement to pay financial consideration to,
and has not made any payment to, any 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. Conlinu.t)ications with Consultat)ts. Applicant/Developer may only communicate
with consultants retained hereunder with the permission of the City's Director of
Planning and Building Safety. In no case may Applicant/Developer direct
consultant as to how to undertake or prepare consultant's work product.
7. ConiOl iat)cc with Latw.Applicant/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.
8. Waiver ol'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.
9. It)sok,enc; ; _ e t i Re.t°mm Either the appointment of a receiver to take possession of all or
substantially all of the assets of Applicant/Developer, or a general assignment by
Applicant/Developer for the benefit of creditors, or any action taken or offered by
Applicant/Developer under any insolvency or bankruptcy action, will constitute a breach
of this Agreement by Applicant/Developer, and in such event this Agreement will
automatically cease and terminate if Applicant/Developer or its successor or assign cease
or fails to timely pay any amount due and payable by Applicant/Developer(or its successor
or assign)under this Agreement.
10. 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 t .,....
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Agreement No. 5528
of the personal service,upon deposit in the United States Mail,certified or registered mail,
return receipt requested,postage prepaid,addressed to:
Applicant/
Developer at: J. Anthony Kouba
1445 Fifth Street
Santa Monica, CA 90401
310-508-7904
City at: City of El Segundo
Attn: Gregg McClain, Planning Manager
350 Main Street
El 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.
11. Acccptaancc ol''Elcctroriic S a auger. 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 electronic mail in
"portable document format" (i.e., .pdf)form, or by facsimile transmission. Such signature
will be deemed to be and treated in all respects as an original signature.
12. Governing Law. This Agreement is 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.
13. Partiaut lruvaatictity. 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.
14. Intearation.This instrument and its attachments constitute the sole agreement between City
and Applicant/Developer respecting the matters above and correctly sets forth the
obligations of City and Applicant/Developer.
15. 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.
16. AutholityLN42d,ification, 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. The
City's manager,or designee,may execute any such amendment on behalf of City.
17. 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.
[Signatures on following page]
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Agreement No. 5528
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
City of El Segundo, Segundo Restaurant Partnership,LLC,
a municipal corporation. a California Limited Partnership
465—re , arlpenter ity Manager J. Antiio ny 0'Uba
ATTEST:
Tra' �'Wca ver;"Cil
APPROVED AS TO FORM:
..........1111111111111111�-I'.�..........
Mark D.Hensley, 06)�torney
tIf the owner is a Corporation or similar entity,then two officer signatures are required,or evidence must be
provided that one signature binds the company}
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Agreement No. 5528
EXHIBIT "A"
PROPOSAL FOR ENVIRONMENTAL REVIEW AND TECHNICAL STUDIES
FOR A ZONING CODE AMENDMENT AND HOTEL PROJECT
PREPARED BY:
RINCON CONSULTANTS,INC.
DATED:
APRIL 26,2018
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