Resolution No. 2016-004 (10)CITY OF VERNON
ADDED FACILITIES AGREEMENT
1. PARTIES: The Parties to this Added Facilities Agreement ("Agreement") are
RPLANET EARTH LOS ANGELES, LLC, a Delaware limited liability company ("Customer")
and the City of Vernon, a California municipal corporation ("City"), hereinafter referred to
individually as "Party" and collectively as "Parties."
2. RECITALS:
2.1. City and the Customer (or, an affiliate of the Customer) are entering into
this Agreement with respect to the electric service delivery to the property located at 3200
Fruitland, Vernon, California (the "Property").
2.2. Customer has requested to receive electric service from City at a single or
totalized point of 16 kV delivery starting on or about the Start Date (as defined below) at an
initial service level of 5,750 kW demand based on an estimated 9,000 kW of connected load with
a potential service level of 11,000 kW demand based on an estimated 19,000 kW of connected
load.
2.3. Parties agree that City shall provide the design, engineering, procurement,
construction, installation, ownership, and maintenance of the electric facilities described in
Exhibit A, and hereinafter referred to as "Added Facilities", the cost of which shall be paid solely
by the Customer in accordance herewith. .
2.4. Parties agree that in -lieu of constructing a 66 kV substation at the
Customer property, Customer shall pay to City $1,000,000 in aid of construction to upgrade the
City' electrical substation transformers (the "In Lieu Fee").
2.5. Parties agree that the City shall extend a new 16 KV line from inside the
City's electrical substation to the customer's property line to be identified as a 16 KV line
extension (the "Line Extension"). Customer shall pay for the Line Extension in accordance
herewith. For purposes of determining the Added Facilities Installation Costs and Added
Facilities Monthly Charge, the line extension is excluded from the list of Added Facilities.
2.6. Parties agree that Customer shall deliver to an escrow account established
by the City and Customer the amount specified herein, which amounts will be used to pay to the
City and/or its contractors all Added Facilities Installation Costs (as defined below) and Line
Extension Costs (as defined below).
3. AGREEMENT: Parties agree to the terms and conditions set forth herein,
including Exhibits A through E, attached hereto and incorporated herein by this reference.
4. EFFECTIVE DATE AND TERM:
4.1. This Agreement shall be effective upon execution by the Parties and
approval by the City Council of the City of Vernon.
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4.2. This Agreement shall continue in effect until (a) Customer gives notice of
termination of service in accordance with Vernon's Rules for Electric Service (as amended, the
"Electric Service Rules"), (b) this Agreement is terminated by City due to an Event of Default by
Customer (c) this Agreement is terminated by City due to a Failure to Commence Operations by
Customer, ten (10) business days after notice from City to Customer, or (d) this Agreement is
terminated pursuant to Section 19;
4.3. If this Agreement is terminated, Customer shall pay within ten (10)
business days after notice from City (a) all unpaid Added Facilities Installation Costs, Added
Facilities Monthly Charges and any other amounts owed by Customer hereunder, in each case
through the date of termination, and (b) the Termination Fee, as described on Exhibit C.
Customer's obligations to pay such amounts shall survive the termination of this Agreement. If
the Customer has elected to terminate this Agreement, such termination shall not be effective
unless and until such amounts are paid in full.
5. DEFINITIONS: The following terms, when used herein with initial
capitalization, whether in the singular or the plural, shall have the following meanings:
5.1. Added Facilities: The facilities to be designed, engineered and
constructed as specified in Exhibit A, all of which are being allocated for the Customer's use and
benefit as Added Facilities. Any upgrades or improvements associated with such Added
Facilities will be mutually agreed upon by Customer and City in writing and will thereafter
automatically become part of the Added Facilities.
5.2. Added Facilities Installation Costs: All costs and expenses incurred by
City in relation to the design, engineering, procurement, construction, and installation of the
Added Facilities, including without limitation the reasonably allocated costs of internal City
employees involved with such design, engineering, procurement, construction and installation.
Customer acknowledges that the Added Facilities Installation Costs may be based on prevailing
wages and other regulatory requirements. The Added Facilities Installation Costs shown on
Exhibit A are estimates only. If the final Added Facilities Installation Costs differ from the
estimates, the Added Facilities Installation Costs will be equal to such final amount and Exhibit
A, and related calculations in Exhibits B and C, shall be deemed automatically amended to
reflect the same.
5.3. Added Facilities Monthly Rate: The Added Facilities Monthly Rate
pursuant to Exhibit B.
5.4. Agreement and Amendments: This Agreement, including all attachments
and exhibits hereto, as may be amended from time to time. Modifications and amendments to
this Agreement shall be valid and enforceable only if in writing and signed by the Parties, or as
otherwise expressly provided herein.
5.5. Added Facilities Monthly Charge: The charge to Customer for Added
Facilities that is payable monthly to City as outlined in Exhibit C, as may be modified in
accordance herewith. The Added Facilities Monthly Charge recovers replacement, operations
and maintenance of all facilities that are allocated for Customer's exclusive use consisting of
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distribution transformers, pad -mounted switches, pad -mounted primary metering cabinets, 16
KV cabling from pad -mounted switches to distribution transformers and 600 Volts cabling from
the transformers to the customer furnished electric panels and low voltage metering and all
necessary hardware to deliver a reliable and efficient power delivery. The Added Facilities
Monthly Charge does not include the costs of the Line Extension, as the City will be fully
responsible for its upkeep.
5.6. Completion Date. December 15, 2016, subject to uncontrollable forces as
described in Section 11 below.
5.7. Effective Date. The date set forth in Section 30 below.
5.8. In Lieu Fee. $1,000,000 in cash and immediately available funds, as
contemplated by Section 2.5.
5.9. Line Extension. As generally described in Section 2.6, and more
particularly described on Exhibit A-1.
5.10. Line Extension Costs. All costs and expenses incurred by City in relation
to the design, engineering, procurement, construction, and installation of the Line Extension,
including without limitation the reasonably allocated costs of internal City employees involved
with such design, engineering, procurement, construction and installation, estimates of which are
provided on Exhibit A-1. Customer acknowledges that the Line Extension Costs may be based
on prevailing wages and other regulatory requirements. The Line Extension Costs shown on
Exhibit A-1 are estimates only. If the final Line Extension Costs differ from the estimates, the
Line Extension Costs will be equal to such final amount and Exhibit A-1, and related
calculations on Exhibit C, shall be deemed automatically amended to reflect the same.
5.11. Reserve Amount. An amount equal to two hundred percent of the
estimated Added Facilities Installation Costs and Line Extension Costs, which based on Exhibits
A and A-1 as of the Effective Date and as applied to Phase 1 of the Added Facilities only, is
equal to $2,300,000.
5.12. Services: The design, engineering, procurement, construction, installation,
ownership, replacement, operation and maintenance of the Added Facilities.
5.13. Start Date. The date that is thirty (30) days following the date upon which
the City has completed the installation of the Added Facilities.
6. ADDED FACILITIES; LINE EXTENSION:
6.1. The Added Facilities will be located at the Property. Added Facilities
consist of, among other things, construction and installation of distribution transformers and
apparatus delivering multiple 277/480 volt service points for the benefit of the Customer on the
terms and conditions set forth in this Agreement. The Added Facilities allocated for Customer's
exclusive use shall be installed in or on Customer's furnished underground infrastructure
consisting of conduit banks, transformer concrete pads, switching concrete pads, primary
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metering concrete pads and protective barriers, all of which are to be provided by Customer at
Customer's sole cost and expense.
6.2. City shall perform all of the Services related to the Added Facilities and
the Line Extension.
6.3. Subject to Customer's fulfillment of the conditions precedent set forth in
Section 19 below, City will (a) commence performance of the design and construction of the
Line Extension and Phase 1 of the Added Facilities, as described on Exhibit A, upon full
execution of this Agreement and (b) use commercially reasonable efforts to install the Line
Extension and Phase 1 of the Added Facilities by the Completion Date, so that they are fully
operational upon the issuance of a "Certificate of Occupancy" for the Property (which is
estimated by Customer to be obtained on or before December 31, 2016).
6.4. Added Facilities and the Line Extension shall at all times remain the
property of City.
6.5. At Customers election, the Added Facilities are being constructed in two
phases as described on Exhibit A. The facilities constructed in Phase 1 shall be adequate to serve
the initial 5,750 kW contract demand. The Added Facilities constructed in Phase 2 shall be
adequate to accommodate Customer's electric demand of with a potential of 11,000 kW.
6.6. Customer shall install the underground infrastructure consisting of conduit
banks, concrete pads and protective barriers for all phases prior to final paving of the Property
and in all cases in a timely manner to ensure City's ability to perform the installation of the
Added Facilities in accordance herewith.
6.7. City shall exercise commercially reasonable efforts to complete the
installation of Phase 1 of the Added Facilities and Line Extension per the Project Schedule
included as Exhibit D. However, City shall not be liable for any cost or damage incurred by
Customer because of any delay in the commencement, progress or completion of the installation
of any Added Facilities or the Line Extension.
6.8. City shall construct and maintain the Added Facilities and Line Extension
diligently pursuant to all applicable federal, state and local safety codes, regulations, and laws,
including but not limited to the requirements of California's General Orders No. 95, 128 and 165.
Customer shall have the exclusive right of use of the Added Facilities located on the property.
6.9. Prior to the date on which City completes the Added Facilities and
provides electrical service to Customer at the Property, Customer shall have obtained and paid
for all necessary local and state licenses and permits for operation of its business including City
of Vernon building, electrical and mechanical permits, health permit, certificate of occupancy,
business license, etc. City shall not provide electrical service under this Agreement until
Customer has notified City in writing of its date of commencing operations, which shall not
occur prior to the date on which Customer has obtained all of such licenses and permits.
6.10. Notwithstanding anything to the contrary herein, City will not commence,
and shall have no obligations with respect to, Services relating to Phase 2 of the Added Facilities
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until such time as Reserve Funds therefore have been deposited with the Escrow Agent, as
provided in Section 19 below.
7. CHARGES:
7.1. Customer agrees to pay the Added Facilities Installation Costs, the Added
Facilities Monthly Charge, the Line Extension Costs and the Termination Fee in accordance
herewith.
7.2. Within three (3) business days after the Effective Date, Customer shall pay
to City, pursuant to wiring instructions provided by the City, the In Lieu Fee.
7.3. If at any time Customer requests upgrades to the Added Facilities for
Customer's convenience, City shall determine if such upgrades are feasible. If such upgrades are
made at Customer's request for Customer's convenience and benefit, the costs shall be paid by
Customer at the times and on the basis as agreed to by the Parties at the time.
7.4. The Added Facilities Monthly Charge will commence upon the Start Date.
7.5. MODIFICATIONS OR REPLACEMENT OF ADDED FACILITIES
AND LINE EXTENSION: Whenever Added Facilities and/or components of the Line
Extension are repaired or replaced due to damage or equipment failure, the work shall be
completed at City's sole expense in accordance with good utility practice, pursuant to all
applicable federal, state and local safety codes, regulations and laws, including but not limited to
the requirements of California General Orders No. 95, 128 and 165. Notwithstanding the
foregoing, if the damage or equipment failure is caused by or due to action or inaction by the
Customer, then the Customer shall be solely responsible for the entire cost of repair or
replacement and shall pay the same to City within ten (10) business days after demand therefor.
Where an upgrade or improvement to the Added Facilities or Line Extension is required for
City's convenience or necessity, no increase shall be made in the investment amount for Added
Facilities, the Added Facilities Installation Cost, Line Extension Costs or the Added Facilities
Monthly Charge. Such upgrades or improvements shall be reasonably coordinated with
Customer prior to any such upgrades or improvements made in order to avoid unreasonable
interruption of Customer's operations.
7.6. Subject to Section 7.5, City shall be responsible for all routine
maintenance and repairs required to maintain the Added Facilities and Line Extension in good
operating condition and shall make those capital expenditures (including capital repairs and
replacements, as necessary) required to maintain the Added Facilities and Line Extension.
8. RIGHT-OF-WAY: Customer understands that property owner grants to City the
right of ingress to and egress from Customer's Property as determined by City in its sole
discretion for any purpose connected with the construction, operation, and maintenance of the
Added Facilities and Line Extension. Customer agrees to provide right-of-way or easements of
sufficient space to provide legal clearance from all structures now or hereafter erected on
Customer's Property for any facilities of City. Customer and property owner will promptly
execute a recordable document, based on the City's customary form, evidencing the above
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described right of ingress and egress and right-of-way or easement, with the recordation costs to
be borne by City.
9. BILLING AND PAYMENT:
9.1. City shall prepare and deliver monthly bills to Customer for the Added
Facilities Monthly Charge.
9.2. The Customer shall pay the Added Facilities Monthly Charge concurrently
with its electric service bills. Late charges will be applied pursuant to City's Electric Service
Rules.
10. NOTICES: Except as otherwise provided in this Agreement, any notice, demand,
or request provided for in this Agreement, or served, given, or made in connection with the
Agreement, shall be in writing and shall be deemed properly served, given, or made if delivered
in person, or sent by United States Mail, postage prepaid, or sent by reputable overnight delivery
service, to the address specified below
Company: RPLANET EARTH LOS ANGELES, LLC
Attention: Robert Daviduk, Co -CEO
Address: 2361 Rosecrans Ave., Suite 336
City, State, Zip: El Segundo, CA 90245
Telephone: (310) 527-0733
Email: bob(d,rplanetearth.com
Copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP
Attention: Joe M. Davidson, Esq.
Address: 501 W. Broadway, 15th Floor
City, State, Zip: San Diego, CA 92101
Email: javidson@allenmatkins.com
Vernon: Vernon Gas & Electric Department
Attention: Carlos Fandino, Director
Address: 4305 Santa Fe Avenue
City, State, Zip: Vernon, CA 90058
Telephone: (� -
Email:
Copy to: City Attorney's Office
Attention: Hema Patel, City Attorney
Address: 4305 Santa Fe Avenue
City, State, Zip: Vernon, CA 90058
Either Party may at any time, by notice to the other Party, change the designation or address of
the person so specified as the one to receive notices pursuant to this Agreement. Notices are
deemed given and received on the date of delivery or attempted delivery, if delivery is not
accepted.
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11. FORCE MAJEURE: Neither Party shall be considered to be in default in the
performance of any of its obligations under this Agreement (other than obligations to make
payments pursuant to this Agreement) when failure of performance shall be due to
uncontrollable forces. The term "uncontrollable forces" means any cause beyond the control of
the Party failing to perform, including, but not restricted to, failure of facilities, flood,
earthquake, storm, lightning, fire, epidemic, war, riot, terrorism, civil disturbance or
disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or
public authority, and action or non -action by, or inability to obtain the necessary authorizations
or approvals from, any governmental agency or authority which by exercise of due diligence
such Party could not reasonably have been expected to avoid and which by exercise of due
diligence it has not overcome. Either Party rendered unable to fulfill any of its obligations under
this Agreement by reason of an uncontrollable force shall give prompt written notice of such fact
to the other Party and shall exercise due diligence to remove such liability. Nothing contained
herein shall be construed to require a Party to settle any strike or labor dispute in which it may be
involved.
12. INDEMNIFICATION AND LIMITATIONS ON LIABILITY:
12.1. Except to the extent of City's gross negligence or willful misconduct,
Customer agrees to indemnify, defend, and hold harmless City of and from any and all claims,
causes of action, damages and judgments arising out of any act or omission of City, and its
officers, directors, employees and agents that may have caused injury or damage to any person,
or to the equipment, fixtures, goods, products, or other property of the Customer, the Customer's
employees, contractors, invitees, customers, or any other person in or about the Property,
regardless of cause or whether or not such injury or damage results from conditions arising from
Services provided by City hereunder or the installation, operation or maintenance of the Added
Facilities and/or Line Extension or any failure of the Added Facilities or Line Extension to
deliver electrical power or any defect in the Added Facilities and/or Line Extension, or
explosion, fire, or steam released from the Added Facilities and/or Line Extension.
12.2. Notwithstanding either Party's negligence or breach of this Agreement,
under no circumstances shall either Party be liable to the other Party for indirect, special, or
consequential loss, damage, claim, cost, charge, or expense including, but not limited to, loss of
business or any loss of income or profit therefrom, loss of use of a Party's facilities, loss of
revenue, cost of replacement power or water, and claims of any third party, including any
customer of the other Party.
13. ENTIRE AGREEMENT: This Agreement, including Exhibits A through E, the
Agreement for Economic Development Incentive on Electric Service entered into by and
between the City and Customer of even date herewith constitutes the complete and final
expression of the agreement between the Parties and is intended as a complete and exclusive
statement of the terms of their agreement which supersedes all prior and contemporaneous offers,
promises, representations, negotiations, discussions, communications, and other agreements
which may have been made in connection with the subject matter of this Agreement.
14. RELATIONSHIP OF PARTIES: The covenants, obligations, and liabilities of the
Parties are intended to be several and not joint or collective, and nothing contained in this
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Agreement shall ever be construed to create an association, joint venture, trust or partnership, or
to impose a trust or partnership covenant, obligation, or liability on or with regard to either Party.
Each Party shall be individually responsible for its own covenants, obligations, and liabilities as
provided in this Agreement. Neither Party shall be under the control of the other Party. Neither
Party shall be the agent of or have a right or power to bind the other Party without such other
Party's express written consent.
15. NO THIRD -PARTY RIGHTS: The parties do not intend to create rights in, or to
grant remedies to, any third Party as a beneficiary either of this Agreement or of any duty,
covenant, obligation, or undertaking established herein.
16. ARBITRATION: The Parties agree that any and all disputes arising out of or in
relation to this Agreement, including without limitation any action in tort, shall be resolved
exclusively, finally and conclusively by arbitration in Los Angeles County, California under the
auspices of and pursuant to the rules of the Judicial Arbitration & Mediation Services, Inc.
(JAMS). Each Party will select an arbitrator. Those two arbitrators will then select a third. The
three member panel will make the final decision. All decisions of the arbitrators shall be in
writing, and the arbitrators shall provide written reasons for their decision. The arbitration
decision shall be final, unappealable and binding on the parties. Notwithstanding the foregoing,
the Parties shall be permitted to access the court system to enforce any arbitration award or to
obtain injunctive relief. The exclusive jurisdiction and venue for any such action shall be the
Superior Court of California, Los Angeles County.
17. ATTORNEYS' FEES: If either Party institutes an action or legal proceeding
arising out of or related to this Agreement or the relationship of the Parties or their rights or
duties in connection with the matters set forth in this Agreement, whether sounding in tort,
contract, or otherwise, the prevailing Party in such action or proceeding shall be entitled to
recover from the other party all costs and expenses, including all costs and reasonable attorneys'
fees, in addition to any other remedy awarded by the arbitration panel.
18. INSURANCE: Customer shall, for the duration of this Agreement, obtain and
maintain at its own expense, premises liability coverage with a minimum combined single limit
of $1,000,000 per occurrence and provide City with proof of insurance providing and
maintaining the coverages and endorsements set forth herein. Said proof of insurance shall also
provide that said policy or policies shall not be canceled or materially reduced in coverage
without giving at least thirty (30) days prior written notice to the City. The insurance coverage
as listed herein, shall be properly endorsed to include those contractual obligations which may be
identified further within this Agreement and shall be endorsed to provide City all the rights and
privileges of an additional insured. Customer shall cause its insurers to issue, including but not
limited to, Certificates of Insurance or, upon request, certified copies of the insurance policies
evidencing that the coverages and policy endorsements required under this Agreement, are
maintained in force.
19. CONDITIONS PRECEDENT
subject to the following conditions precedent:
City's obligations under this Agreement are
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19.1. Within three (3) business days after the Effective Date, Customer shall
deliver to Commonwealth Land Title Insurance Company, Attention: Mai Ly Marsh ("Escrow
Agent"), in immediately available funds an amount equal to the Reserve Amount (the "Reserve
Funds"). City will be entitled to use the Reserve Funds for purposes of paying the Added
Facilities Installation Costs and Line Extension Costs. From time to time, as the City progresses
with the Services regarding the Added Facilities and/or Line Extension, the City may request a
disbursement from the Escrow Agent in order to pay Added Facilities Installation Costs and/or
Line Extension Costs. Escrow Agent shall, without further authorization or approval from
anyone, disburse the requested amount to City. If City at any time determines that the Reserve
Funds are insufficient to pay the Added Facilities Installation Costs and/or Line Extension Costs
(the insufficient amount being the "Deficiency"), Customer shall, within five (5) business days
after notice thereof from City, deliver to Escrow Agent an amount equal to 200% of such
Deficiency. Upon completion of the installation of the Added Facilities and Line Extension and
payment of all Added Facilities Installation Costs and Line Extension Costs, any balance of the
Reserve Funds remaining with the Escrow Agent shall be released and refunded to Customer
upon a joint written instruction of City and Customer.
19.2. Within three (3) business days after the Effective Date, Customer shall
have paid to City the In Lieu Fee.
19.3. If said conditions are not satisfied on or before the deadlines indicated,
and such failure continues for three (3) days after notice from City to Customer, City may
terminate this Agreement by notice to Customer.
19.4. As and when Customer elects for the City to proceed with Services
relating to Phase 2 of the Added Facilities, Customer shall cause to be deposited with Escrow
Agent Reserve Funds for the estimated Added Facilities Installation Costs relating to Phase 2.
Use of such funds will then be governed by Section 19.1 above. City will provide such estimate
at such time. The current estimate is set forth on Exhibit A.
20. EVENTS OF DEFAULT:
20.1. Any failure of a Party to perform its obligations hereunder that is not
cured by the applicable Party within ten (10) business days after delivery of notice of default
from the non -defaulting Party shall constitute an "Event of Default"; provided, however, that
such default (other than with respect to any obligation to pay money in accordance herewith)
shall not constitute an Event of Default if the applicable Party commences to cure the default
within such ten (10) business day period and diligently prosecutes the cure to completion and in
all events cures such default within sixty (60) days after the original notice of default.
20.2. In addition to any other remedies available at law or equity, City shall
have the right, at its option, to terminate this Agreement and to demand payment as described
herein upon the occurrence of an "Event of Default" by or with respect to Customer.
20.3. Upon demand by City following an Event of Default, Customer shall
immediately pay all accrued and unpaid amounts owing by Customer as of the date of
termination and the Termination Fee, as described in Exhibit C, calculated as of the date of
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termination. The termination of the obligations of City will not terminate the obligation of
Customer until Customer has repaid City for any costs incurred pursuant to this Agreement.
20.4. Each of the following shall also constitute an Event of Default by
Customer: (a) the making by Customer of any general arrangement or assignment for the benefit
of creditors; (b) Customer becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor
statute thereto (unless, in the case of an involuntary petition filed against Customer, the same is
dismissed within 60 days); (c) the appointment of a trustee or receiver to take possession of
substantially all of Customer's assets located at the Property, where possession is not restored to
Customer within 30 days; or (d) the attachment, execution or other judicial seizure of
substantially all of Customer's assets located at the Property, where such seizure is not
discharged within 60 days; provided, however, in the event that any provision of this
subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and
not affect the validity of the remaining provisions.
21. ASSIGNMENT: This Agreement shall bind and inure to the benefit of the Parties
and their respective successors and assigns; provided however, that, Customer shall not assign
this Agreement or any of its rights, duties, or obligations without the prior written consent of
City, which consent shall not be unreasonably withheld.
22. NO WAIVER: No delay or omission to exercise any right, power or remedy
accruing to a Party on any breach or default of the other Party under this Agreement shall impair
any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence in such breach or default occurring later; nor shall any waiver of
any single breach or default be considered a waiver of any other prior or subsequent breach or
default. Any waiver, permit, consent, or approval of any kind by a party of any breach or default
under this Agreement, or any waiver of any provisions or condition of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in that writing.
23. REMEDIES: All remedies, either under this Agreement or by law or otherwise
afforded to a Party, shall be cumulative and not alternative.
24. HEADINGS NOT BINDING: The use of headings in this Agreement is only for
ease of reference, shall have no legal effect and are not to be considered part or a term of this
Agreement.
25. SEVERABILITY: If any portion of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions
shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each portion of this
Agreement containing any provision held to be invalid, void, or otherwise unenforceable that is
not itself invalid, void, or enforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, void, or unenforceable.
26. GOVERNING LAW: This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, without regard to its conflict of
laws rules.
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27. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall constitute one and
the same agreement.
28. GOVERNING DOCUMENTS: In the event of a conflict between this Agreement
and any other rules or agreements issued by the City of Vernon governing such Added Facilities,
this Agreement shall be primary.
29. SIGNATURE CLAUSE: The signatories hereto represent that they have been
appropriately authorized to enter into this Agreement on behalf of the Party for whom they sign.
30.
Effective Date. This Agreement
(the "Effective Date").
THE CITY OF VERNON
Michael McCormick, Mayor
TEST:r
f�f„
Maria I. Ayala, Ci Jerk
APPROVED AS TO FORM:
is hereby executed as of
CUSTOMER
RPLANET EARTH LOS ANGELES, LLC,
a Delaware limited IiabAN companA A
as
Name: ( C � ,� f a� I
T;11—
O
By: —
Name: SsEP Et 1�, (Los g
Title: Co _ G E�
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v !I
Hema Patel, City Attorney
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EXHIBIT A
ADDED FACILITIES PLANS AND SPECIFICATIONS
Phase 1: Estimated Cost $800,000
Phase 1 consists of 5 pad -mounted transformers, 3 PME 16 KV pad -mounted switches, 2 16 KV
primary metering cabinets, 16 KV primary cables on the Customer property, low voltage conductors from
the transformers to the Customer furnished electrical panels, and low voltage metering.
Phase 2: Estimated Cost $450,000
Phase 2 consists of 5 pad -mounted transformers, 3 PME 16 KV pad -mounted switches, 16 KV
primary cables on the Customer property, low voltage conductors from the transformers to the Customer
furnished electrical panels, and low voltage metering.
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EXHIBIT A-1
LINE EXTENSION PLANS AND SPECIFICATIONS
The line extension consists of extending a new 16 KV circuit from City's existing City's Substation
through City's existing conduit bank infrastructure along Fruitland Avenue and six (6) existing
manholes/vaults to the Customer's property line. The City shall own and maintain the new 16 KV circuit
similar to other existing 16 KV circuits it owns and the Customer shall neither have exclusive rights to the
line extension nor shall it pay for any Added Facilities Monthly Charges associated with the City cost for
replacement, operations and maintenance of the line extension.
The estimated Services cost associated with the line extension is $350,000.
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EXHIBIT B
ADDED FACILITIES MONTHLY CHARGE
Customer shall pay a monthly added facilities charge at the rate set below. The rate is based on a
percentage of the Added Facilities Installation Cost.
Item
Cost (estimates)
Comments
Added Facilities Monthly Rate
0.33%
See IN 1
Added Facilities Installation
$800,000
See IN 2
Costs — Phase 1
Added Facilities Installation
$450,000
See FN 2
Costs — Phase 2
Added Facilities Monthly
$2,640
Charge - Phase 1
Added Facilities Monthly
$4,125
Charge - Phase 1 and 2
combined
Line Extension
N/A
See FN 3
Footnotes:
(1) Pursuant to Rule 2.1-1
(2) Pursuant to Exhibit A to this Agreement
(3) Line Extension Costs are to be paid by the Customer upon City's request for work
performed from the Reserve Funds. The Line Extension, as identified in Exhibit A-1, is
not included in the Added Facilities Installation Cost and Added Facilities Monthly
Charge.
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EXHIBIT C
TERMINATION FEE
If this Agreement is terminated for any reason, other than an Event of Default by City, Customer
shall pay City in full the Termination Fee calculated as set forth below:
• Any Added Facilities Installation Cost and Line Extension Costs;
• Plus: Costs of upgrades made at Customer's request for
Customer's convenience (if any);
• Plus: Demolition and removal costs (if applicable); and
• Plus: Other documented costs actually incurred by City (such as
insurance, taxes, cancellation fees, etc., if any).
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EXHIBIT D
PROJECT SCHEDULE — Phase 1 Added Facilities
City Council Approval: December 15, 2015
Design and Engineering Completion: March 31, 2016
Procurement Completion Date: June 30, 2016
Construction Completion date: December 15, 2016
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