CONTRACT 5459 Reimbursement Agreement CLOSED Agreement No. 5459
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement("Agreement") is entered into as of December JL, '2017 by and
between the City of El Segundo, a general law city and municipal corporation ("City"), and El
Segundo Power, LLC, a Delaware Limited Liability Company ("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 filed an application for the closure of two tunnels with
direct access to the Pacific Ocean at 301 Vista Del Mar in El Segundo (APNs:
4138-029-800,4138-029-802, and 4138-029-803)(the"Project").
b, The Project requires environmental review,preparation of environmental technical
reports and documents under the California Environmental Quality Act
("CEQA"); the retention of costs of attorneys' fees; the retention and costs of
professional consultants; the costs of work performed by City staff to complete a
number of tasks including 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"). Such Project 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. CityiWmbUrsement. Applicant/Developer agrees to fully reimburse the City for the
Project Costs. City has estimated the Project Costs as being $68,560.00. This amount
includes the environmental consulting services to be performed by EcoTierra Consulting,
Inc. as described in Exhibit "A" (estimated at $48,560.00) plus an additional City
Administrative Cost of$20,000.00.However,the Applicant/Developer 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/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 Project Costs, as disclosed by the accounting, is called the "Reimbursement
Amount."
3. Method of Reimbursement.
a. initial I)crros'rt. Except as provided below, upon execution of this Agreement,
Applicant/Developer agrees to deposit with City $68,560.00 ("Deposit Amount")
which represents 100 percent of the total estimated Reimbursement Amount.Costs
associated with the Project will be charged against the deposit amount.
1
Agreement No. 5459
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. l°�eplenishmenl Deljosit. Whenever the Deposit Amount balance falls below
$5,000, the 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, 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.As described in Section 2 above,
it is cun•ently estimated that such administrative costs will total $20,000.00.
Applicant/Developer acknowledges that such amount is an estimate only and that the actual
administrative costs may be more or less than such amount. Such costs will be deducted
by City from the Deposit Amount on a monthly basis.
5. li int/Develoner Default. 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 underthis 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,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.
6. Term. This Agreement will terminate either (i) i- trtonll1s frcicrl tfaa (hite
A,wlipi;ij lcveloper's al?plicaatioil has been app over the City,building pennit issualrce
c;r l tNildsi�g la rt;at,1,
filial; or(ii)when the Project has been disapproved or 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 Project Costs incurred up to such date of disapproval or withdrawal pursuant
to this Agreement.
7. Conflicts of Interest.
a. Consuhants 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
2
Agreement No. 5459
prepared hereunder or any approvals granted reflect the City's independent
judgment, and City has no obligation to approve the Project.
b. No 1-miliLpyittacnt by ApDlican1JlJevcl(.pei-. 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. Communications with Consultants. 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.
8. Comnliance Nvith La A.e 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.
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. Insolvency: l cceivcr. 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.
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
3
Agreement No. 5459
of the personal service,upon deposit in the United States Mail,certified or registered mail,
return receipt requested,postage prepaid, addressed to:
Applicant/ John Chillemi,President
Developer at: El Segundo Power,LLC
301 Vista Del Mar
El Segundo,CA 90245
(310)615-6030
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.
12. AcceGatance of Flectronic Si 'natures. 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. Governina 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. InLearatior.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.
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. Author'iCvlMod iIication., 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. Counter)art5,, 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]
4
Agreement No. 5459
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
CITY OF EL SEGUNDO, EL SEGUNDO POWER, LLC
a mnunicip#corpration, A Delaware Limited Liability Company
Gm-e , ' rper,City Manager JulaChillemi, President
Sean P.Beatty, Secretary
ATTEST:
P'/'//r911),,f, . , f
f
. Traa� cr Cit
Clerk
APPROVED AS TO FORM:
Mark D. Hensley,Cit A rney
{if the owner is it Corporation or similar entity,then two officer signatures are required,or evidence must be
provided that one signature binds the company}
5
Agreement No. 5459
EXHIBIT "A"
DESCRIPTION OF SERVICES
Or attach scope of services from vendor
6