CONTRACT 5752 Reimbursement Agreement CLOSEDAgreement No. 5752
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") is entered into as of July 3l , 2019, by
and between the City of EI Segundo, a general law city and municipal corporation ("City"),
and Nelson and Sharyn Fisk ("Applicant"). The parties agree as follows:
Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. Applicant requests a zone text amendment to redefine how lot widths are
measured in the EI Segundo Municipal Code. (the "Project")
The Project may require the retention of professional consultants; the costs
of attorneys' fees; the costs of work performed by City staff to complete a
number of tasks including ordinance drafting and environmental review,
among others (collectively, "Project Costs").
C. City believes it is in the public interest for Applicant to pay such Project
Costs. Applicant understands that all work performed by the City related to
the Project will be under the direction of City, but at Applicant's expense.
Citv Reimbursement. Applicant agrees to fully reimburse the City for the Project
Costs. City has estimated the Project Costs as being $5,000. This amount includes
environmental review and City administrative costs. However, the Applicant
acknowledges that the actual amount of such Project Costs may be different.
Nonetheless, even though the actual amount of such Project Costs may be
different, the Applicant 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 with an accounting of the Project Costs on a monthly basis,
which accounting the Applicant agrees will be conclusive, in the absence of
manifest error. The total cost of the Project Costs, as disclosed by the accounting,
is called the "Reimbursement Amount."
3. Citv has No Obliraation to Aoorove Protect. By signing this Agreement, Applicant
acknowledges and understands that this Agreement in no way obligates the City to
approve any of the entitlements or environmental documents for the Project. The
City and its elected and appointed officials retain sole discretion to either approve or
deny any of the environmental documents or entitlements that are the subject of this
Agreement and needed to effectuate the Project.
4. Method of Reimbursement.
a. Initial De osis. Except as provided below, upon execution of this
Agreement, Applicant agrees to deposit with City $5,000 ("Deposit
Amount") which represents 100 percent of the total estimated
Reimbursement 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. Applicant understands and agrees that
Agreement No. 5752
City will not pay interest to Applicant on the Deposit Amount and Applicant
will not seek such interest payments from City.
C. Replenishment Deposit. Whenever the Deposit Amount balance falls below
$2,000, the City may request the Applicant to replenish the amount
("Replenishment Deposit"). Applicant agrees to deliver a Replenishment
Deposit to City within 15 business days following the City's request.
d. 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 Amount to Applicant within 30 days after
determining the Reimbursement Amount.
5.ity Administrative Costs. Administrative costs incurred by City, including staff
time, legal costs, fees and services, must be reimbursed on a time and materials
basis based on current City reimbursement rates. Such costs will be deducted by
City from the Deposit Amount on a monthly basis.
& 8pp licant 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 pay either the
Deposit Amount or a Replenishment Deposit, or fails to fully reimburse the City for
the Project 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. Notwithstanding anything to the contrary contained in this
Agreement, City agrees that no direct or indirect partner, shareholder, member,
manager, owner, officer, director, trustee, agent, affiliate, or employee in or of
Applicant or in or of any of the foregoing of Applicant shall be personally liable in
any manner or to any extent under or in connection with any obligation of Applicant
under this Agreement.
7. Term. This Agreement will terminate either: (i)12 months from the date Applicant's
application is approved by the City; or (ii) when the Project is disapproved or the
application is formally withdrawn. Disapproval of the Project or the Applicant's
withdrawal of the application does not excuse Applicant from reimbursing the City
for the Project Costs incurred up to such date of disapproval or withdrawal
pursuant to this Agreement.
8. Compliance with Law. Applicant will, at its sole cost and expense, comply with all
of the requirements of ail 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. lnsolvencv: 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
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Agreement No. 5752
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 if Applicant or its successor or assign cease or fails to timely pay
any amount due and payable by Applicant (or its successor or assign) under this
Agreement.
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:
Applicant at: Nelson & Sharyn Fisk
431 Hillcrest Street
EI Segundo, CA 90245
(310) 308-3779
City at: City of EI Segundo
Attn: 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. Acceptance of Electronic 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
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.
13. Governinq 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.
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 Applicant respecting the matters above and correctly sets forth
the obligations of City and Applicant.
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.
Agreement No. 5752
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. The City's manager, or designee, may execute any
such amendment on behalf of 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.
[Signatures on following page]
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Agreement No. 5752
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day
and year first hereinabove written.
City of El Segundo,
a Municipal Corporation.
0ft Mitnick
it -y Manager
ATTEST:
Tracy Weaver, City Clerk
APPROVED AS TO FORM:
for
Mark D. Hensley, Citrney
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Nelson & Sharyn Fisk