CONTRACT 6320 Reimbursement AgreementAgreement No. 6320
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") is entered into as of March - ` 2022 by
and between the City of El Segundo, a general law city and municipal corporation ("City"),
and NASH DC, LLC, a Delaware limited liability company ("Applicant"). The parties agree
as follows:
Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. The Applicant filed applications for Environmental Assessment No. 971,
Revision A to amend the total number of allowable emergency backup
diesel generators and prepare updated CEQA documents at 444 Nash
Street (the "Project").
b. The Project requires the retention of professional consultants; the costs of
attorneys' fees; the costs of work performed by City staff to complete the
number of tasks including drafting documents and environmental review;
zoning review, plans review for compliance with City standards, building
code compliance, preparation of reports, and project management duties;
the reasonable processing costs related to review and inspection of the
Project; and the costs of implementing the conditions of approval
(collectively, "Project Costs") as indicated in Exhibits A and B (attached).
c, City believes it is in the public interest for Applicant to pay for 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.
2. City Reimbursement. Applicant agrees to fully reimburse the City for the Project
Costs. The City has estimated the Project Costs for processing as being
approximately $40,000 .00. However, the Applicant acknowledges that the actual
amount of such costs and expenses 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 such actual 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 of the costs of the Project,
as disclosed by the accounting, is called the "Reimbursement Amount."
1 City has No Obligation to Approve Project. 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
subject of this Agreement and need to effectuate the Project.
4. Method of Reimbursement.
a. Except as provided below, upon execution of this Agreement, Applicant
agrees to deposit with City $40,000.00 ("Deposit Amount") which
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Agreement No. 6320
represents 100 percent of the estimated Reimbursement Amount for
processing. 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
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
$5,000.00, the City may request the Applicant replenish the amount
("Replenishment Deposit"). Applicant agrees to deliver a Replenishment
Deposit to the City within 10 business days following the City's request. If a
replenishment deposit is not received by the date requested by the City, then
all work on the project shall cease immediately.
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
the Applicant any remaining Deposit amount to applicant within 30 days after
determining the Reimbursement Amount.
5. City Administrative Costs. Administrative costs incurred by City, including, without
limitation, 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.
6. Applicant 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 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.
7. Term. This Agreement will terminate either: (i) 12 months from the date the
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 all 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.
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10, 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 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/ NASH DC, LLC
Developer at: 444 N. Nash Street
El Segundo, CA 90245
Email: notices@sfrdc.com
With Copy To: NASH DC, LLC
444 N. Nash Street
El Segundo, CA 90245
Email: sam@sfrdc.com
Phone: 314-813-1489
City at: City of El Segundo
Attn: Eduardo Schonborn, Planning Manager
350 Main Street
El Segundo, CA 90245
(310) 524-2312
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., .pdo form, or by facsimile
transmission. Such signature will be deemed to be and treated in all respects as
an original signature.
13, 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.
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.
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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.
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. 6320
IN WITNESS WHEREOF the parties hereto have executed this contract the day
and year first hereinabove written.
CITY OF EL SEGUNDO,
A municipal corporation.
City Manager
ATTEST:
Tracy Weaver, City Clerk
APPROVED AS TO FORM:
Mark D. Hensley,
City Attorney
NASH DC, LLC
a Delaware limited liability company
0""'Sug,md by:
Lk10CD?B2848A4BE-..
Avner Papouchado, President
{If Corporation or similar entity, needs two officer signatures or evidence that one signature
binds the company}
Agreement No. 6320
MMZMZME1=
I N T E R N AT 1 0 N A L
March 10, 2022
Mr. Eduardo Schonborn, Planning Manager
City of El Segundo Development Services Department
350 Main Street
El Segundo, CA 90245
RE: Proposal for Third Party CEQA Peer Review Consulting Services for the
Amendment to Environmental Assessment No. 971
Data Center Expansion Project at 444 N. Nash Street, El Segundo, California
Dear Eduardo:
Michael Baker International, Inc. (Michael Baker) appreciates this opportunity to submit our proposal in
response to your request for Michael Baker to conduct a peer review of the 444 N. Nash Street Data
Center Expansion Project (Project) California Environmental Quality Act (CEQA) Initial Study/Mitigated
Negative Declaration (IS/MND) prepared for the Amendment to Environmental Assessment No. 971.
Michael Baker regularly evaluates the best environmental planning practices being utilized in California
and conducts peer reviews of technical reports for effective CEQA practices and implementation. This
scope has been prepared based on the documents you provided (draft Project Description, Project
Planning Application Form, Public Review Draft IS/MND on the prior data center project, and the
associated Resolution 2728).
1.0 IF I~ OSI;I;ICT' IBACKGR(M ND A11 11;) UilNll;', I:.:;:IP I"ANID1114G
The property at 444 N. Nash Street was approved to be developed as a data center in 2008 and underwent
subsequent expansions approved in 2011 and most recently in 2013. The 2013 expansion activities were
reviewed in the CEQA IS/MND (Environmental Assessment No. 971) and approved through Resolution No.
2728.
Based on the draft Project Description (February 15, 2022) prepared for the forthcoming IS/MND (or
Subsequent IS/MND) for the proposed Project, Michael Baker understands that the Project proposes
further expansion of the data center facility to increase the number of onsite backup diesel generators to
15 units. No modifications to land use, building floor area, or structures are anticipated; however, some
earthwork and installation of ancillary facilities to support the additional generator would be required,
such as removing existing concrete, grading and drainage work, and installing the generator foundation
and housing.
The original Project IS/MND (2013) addressed the prior expansion to the data center facility, for which
the approved expansion activities are still under construction, as of February 2022. As a result, the draft
Project Description (February 15, 2022) for the Amendment to the Environmental Assessment identifies
the existing baseline conditions and future baseline conditions in the analysis.
This scope focuses on conducting a third -party peer review of the proposed Project IS/MND and
supporting documentation associated with the previous project approvals.
M BAKER INTL.CO M 3760 Kilroy Airport Way Suite 2701 Long Beach, CA 90806
Office: 562-200-71651 Fax: 562-2oo-7166
Agreement No. 6320
March 10, 2022 We Make a Difference
Page 2
2.0 SCOPE tell,,,, f;; 1:I ,lK,
MBI's scope of work consists of the efforts described below.
2,1 Ta llk 1 IPeeur Review IKickoff and Coir irneint li' eetfings
This task consists of two meetings that are intended to provide an efficient means to communicate
detailed and nuanced Project items. Michael Baker recommends an initial kickoff/coordination meeting
with the Project team, including the City, Applicant, Applicant's consultant, and Michael Baker to
coordinate and strategize, as appropriate, on the approach of the Project Description and associated
analysis during the preparation of the First Administrative Draft IS/MND (prior to Michael Baker's peer
review). Following Michael Baker's peer review and transmittal of comments, Michael Baker recommends
a second meeting to directly address any specific comments and questions.
2.2 "'lli"a lip 2 Peer Il ev'iiew of Project Administirative IDraft l Plll lIND
This task consists of Michael Baker's peer review of the Project Administrative Draft IS/MND. Michael
Baker would conduct a peer review of the Administrative Draft IS/MND for consistency with the previous
project IS/MND and associated Resolution 971, and adequacy of the environmental review based on CEQA
Guidelines Section 15063 pertaining to the purpose and contents of the IS/MND and Sections 15064 and
15065 for determining the significance of the Project's environmental impacts and mandatory findings of
significance, respectively.
Under this task, Michael Baker would conduct one review cycle of the Administrative Draft IS/MND, which
consists of review and transmittal of comments followed by a second review to check that the previously
submitted changes were satisfactorily addressed.
If.:)elliiveirablle
Michael Baker would provide consolidated comments on the Administrative Draft IS/MND in the form of
tracked changes and embedded comments in the IS/MND Word file.
This scope assumes that the Word version of the Administrative Draft IS/MND would be provided for
Michael Baker's review.
Michael Baker assumes that the peer review would be conducted on the Administrative Draft IS/MND
document, and would include a CEQA adequacy level peer review of the supporting Project technical
studies.
Michael Baker assumes that the second round of review would be limited to checking that the
previously submitted changes were satisfactorily addressed. A comprehensive review of a second
Administrative Draft IS/MND is not included in our proposed fee.
2,3 Qllptional Task 3 o Contingency Budget for Add itioiriall Efforts
The purpose of this optional task is to allow for up to 24 hours of additional effort from Michael Baker, if
desired, to address items that may arise during the course of the Project. Examples of additional tasks
may include: additional reviews of the administrative Draft and/or Final IS/MND and responses to
comments; further CEQA advise and strategy; or detailed review and comment on the Project technical
studies. If the optional budget is included into Michael Baker's scope, the contingency budget would not
be used unless written approval is provided to Michael Baker prior to any work initiation.
Agreement No. 6320
March 10, 2022
Page 3
3, 0 I:NROJECT IIFI E III U III,,,,,E
We Make a Difference
Michael Baker's peer review and transmittal of review comments on the Administrative Draft IS/MND
would be conducted within two weeks of receiving the Administrative Draft IS/MND (Word file).
,0 FIFRiCE Tlll l,,,l'C,»„r a FRE & lf°°EIII;";°S
This section provides our proposed budget estimates for Tasks 1 and 2, and the Optional Task 3 described
in Section 2. As shown in Tables 1A and 1B below, the proposed budget is $9,940 without the optional
contingency and $14,540 with the contingency.
TABLE 1A. COST BREAKDOWN: IS/MND PEER REVIEW ONLY
TABLE 1B. COST BREAKDOWN: IS/MND PEER REVIEW AND CONTINGENCY BUDGET
0 C,�„Il,,,,,0SLIRE
Michael Baker appreciates the opportunity to submit this proposal and stands ready to proceed with the
proposed scope of work upon the City's authorization. If you have any questions regarding this proposal,
please do not hesitate to contact me at (310) 890-9537 or jbellas@mbakerintl.com.
Thank you again.
Best regards,
(Y10
John Bellas
Project. Director
Agreement No. 6320
Project: 444 Nash Street, El Segundo
Planning Commission and IS/MND Management
Application and Project Compliance Review:
Zoning Review 4 $680.00
General Plan 1 $170.00
Site Plan 4 $680.00
Pro `ect Management,
Applicant coordination 5 $850,00
Coordination with City Management 5 $850.00
Interdepartmental coordination 4 $680.00
Prepare request for Proposals
2
$340.00
Serve as City Lead Coordinator
6
$1,020.00
Management of CEQA Consultant
6
$1,020.00
Coordinate Document Review
4
$680.00
Staff Report and Resolutions 16 $2,720.00
Presentation Preparation 3 $510.00
Attendance at PC Hearing 4 $680.00
Optional:
Additional Public Hearings 4 $680.00
Subtotals: 68 $11,560.00
15% Contingency 10 $1,700
Totals: 78 $13,260.00