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HomeMy WebLinkAboutAGMT - Hellman Properties LLC (Environmental Review of Project at 711 1st Street)j�F SEAQ �F s ` DEPOSITIREIMBURSEMENT AGREEMENT I CITY OF SEAL BEACH AND Hellman Properties LLC RELATING TO THE DEVELOPMENT OF Hellman Photovoltaic System THIS DEPOSIT/REIMBURSEMENT AGREEMENT ("Agreement") is made and effective this /711 day of C�_4,o belr '2022, by and between the City of Seal Beach, a California municipal corporation ("City"), and Hellman Properties LLC ("Developer"). City and Developer are each referred to as a "Party" and collectively referred to as the "Parties" in this Agreement. RECITALS: A. Developer has submitted an application to construct a 1.5 MW ground mounted, fixed tilt solar photovoltaic (PV) system to produce electrical power to offset the operating needs of the various Hellman Property, LLC oil and gas facilities. The solar PV system would be located on approximately eight acres in the northwest corner of the property and would generate about 2,683 megawatt -hours (MWH) per year. The solar PV facility would consist of 55 2'x28'solar array tables and one 2'x10' solar array table. The solar array tables would occupy approximately 2.9 acres of the eight -acre area, which includes the space between the tables. Each solar array table would be supported on seven pilings that would be set in the ground using a concrete pier 18" in diameter and about 6' deep. The facility would also include 16 inverters, six subpanels, a disconnect switch, and a system transformer. The powerlines connecting the solar array tables and associated equipment would be run in conduits that would be installed in an underground trench. The system will connect with the main Southern California Edison (SCE) powerlines serving the Hellman Ranch Oil and Gas Production Facility on a property located at 711 1sth Street (APN: 095-010-68) (the "Project") in City; B. Pursuant to the City's planning and environmental review process, the City has tentatively determined that the Project will require the following permits and entitlements (together, the "Entitlements") [check those that apply]: [ ] General Plan Amendment [ ] Zoning Change [ ] Design Review [ ] Conditional Use Permit [ I Variance [ ] Master Plan [ ] Precise Development Plan [ ] Negative Declaration / Environmental Impact Report S7296-0001L600661v l .doc [ ] Tree Permit [ ] Fence Permit [ Sign Permit [ ] Other. Minor Use Permit C. The City is the "lead agency," as defined by the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) ("CEQA"), for the purpose of conducting environmental review of the Project, and shall prepare all CEQA reports and supporting documentation, distribute such reports and documentation to responsible agencies and others, hold public hearings and consider public comments, and consider certification of such environmental review report and other documentation through a City Council resolution, as necessary and appropriate in accordance with CEQA; D. Applicant desires that the City, through its staff and professional consultants including but not limited to contract planners, engineers, environmental professionals, attorneys, and other consultants as the City shall deem necessary ("Consultants"), review and take such actions and issue such approvals as may be necessary to complete the Project. D. Public Resources Code Section 21082.1 authorizes the City to contract for planning and environmental review services, including preparation of the environmental documents required by CEQA for the Project. E. Government Code Section 66014 and Public Resources Code Section 21089 entitle the City to recover its reasonable costs of processing the applications for the land use entitlements required by the Project, including but not limited to the cost of the City's preparation and review of all required environmental documents. F. This Agreement is intended to specify the terms of Developer's deposit and reimbursement for City's planning and environmental review services, including .a cash deposit to be made by Developer with on-going payments to City and deposit restoration provisions as provided in this Agreement. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. Conflicts of Interest. (a) No Financial Relationship. By law, the documents required by CEQA must be independently prepared by City. Accordingly (see Section 4), despite any funding mechanism, during the existence of City's contract with the Environmental Consultant (as defined below), and for a period of one (1) year after final resolution of Developer's application for the Project, neither Developer, nor any of its representatives, agents, or other persons acting in concert with Developer, shall enter into any financial relationship with the Environmental Consultant or with any City official, employee, or contractor. Nor, 2 during such period, shall Developer propose to enter into any future relationship with the Environmental Consultant or with any City official, employee, or contractor. This shall not prevent Developer's consulting with Environmental Consultant as permitted by Section 5 of this Agreement. (b) Developer's Representations and Warranties. Developer makes the following representations and warranties for the twelve (12) month period preceding the submission of its application for the Project. Developer represents and warrants that it has not entered into any arrangement to pay financial consideration to, and has not made any payment to, the Environmental Consultant or any of the Environmental Consultant's agents or employees. Developer further represents and warrants that 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 (Cal. Gov. Code, § 87100 et seq.). (c) Developer's Acknowledgments. Subject to the reimbursement requirements set forth below, Developer acknowledges and agrees as follows with respect to its application for the Project: (1) City has sole discretion to select which of its employees and contractors are assigned to work on the application; (2) City has sole discretion to direct the work and evaluate the performance of the employees and contractors assigned to work on the application, and City retains the right to terminate or replace at any time any such person; (3) City has sole discretion to determine the amount of compensation paid to employees or contractors assigned to work on the application; and (4) City, not Developer, shall pay employees and contractors assigned to work on the application from a City account. (d) The Parties acknowledge and agree that the processing of Developer's application for the Project is not contingent on the hiring of any specific contractor. Section 2. The Deposit: Additional Advances. (a) Establishing and Supplementing Deposit. Within three (3) business days following execution of this Agreement, Developer shall provide to City an initial deposit of $ 55,268 ("Initial Deposit"), to be allocated pro, rata to reimburse City for Eligible Expenses, as defined in Section 3(b). City shall monitor its expenses and the balance in the deposit account and whenever it believes, in good faith, that there will be insufficient funds to pay all of City's expenses for the next ninety (90) days, City may make a written request for additional funds ("Additional Advance"), which shall state the existing balance and the additional amount requested. City may request the funds it reasonably believes necessary to cover a period not exceeding ninety (90) days. The deposit account shall generally maintain a minimum balance of five thousand dollars ($5,000.00). The Initial Deposit and Additional Advance funds are hereinafter collectively referred to as the 3 "Deposit." Developer shall make the Additional Advance within five (5) business days of City's written request therefor. If Developer fails to timely make the Additional Advance, City may cease all additional work by staff and consultants on the Entitlements, until City received the Additional Advance from Developer. (b) Eligible Expenses. The Deposit shall be used to reimburse City for costs incurred by City in connection with the following (all of which shall be deemed "Eligible Expenses"): (i) preparing necessary CEQA reports and documents for the Project, and additional supporting documentation, as necessary and appropriate in accordance with CEQA; (ii) distributing the CEQA documentation to responsible agencies and others; (iii) noticing and holding public hearings and considering public comments on the CEQA documents and reports; (iv) considering approval or certification of such CEQA documents and reports and other documentation through a City Council Resolution in accordance with CEQA; (v) preparing, negotiating, and approving the Entitlements and conditions of the Project, including without limitation, the environmental documents; (vi) preparing and negotiating all further legal documents in connection with the transaction, including, without limitation, technical reports, reclamation plans, development agreements, owner participation agreements, leases, franchise agreements, waste hauling agreements, franchise ordinances, and similar agreements and instruments, as applicable; (vii) litigation and other legal costs associated with the Project; (viii) the fees and expenses of any consultants employed by City in connection with the Project; (ix) studies, reports, and design services related to development of any Project -related infrastructure; and (x) any and all other actions reasonably taken by City in connection with development of the Project. (c) Administration of Deposit. The Deposit may be commingled with other funds of City for purposes of investment and safekeeping. The Deposit shall not accrue interest. City shall administer the Deposit and use the Deposit to reimburse City for Eligible Expenses. City shall maintain satisfactory accounting records as to the expenditure of the Deposit at all times and shall provide Developer with monthly costs reports. (d) Unexpended Funds. Upon approval of all necessary Entitlements, the expiration of all applicable appeal periods, and if a legal or administrative challenge is made to the Entitlements, then upon the resolution of such challenge in accordance with Section 8, City shall return any then -unexpended portion of the Deposit to Developer, without interest, less an amount equal to any unpaid Eligible Expenses previously incurred by City. Section 3. Compliance with CEQA Guidelines: Independent Judgment. CEQA Guidelines Sections 15074 and 15090 require the lead agency to exercise its independent judgment in approving environmental documents. Payment of the cost of preparation of the environmental documents by Developer does not underline the independent preparation of the environmental documents by City so long as any consultant hired to prepare the environmental documents is under contract to and directed by City (Pub. Resources Code, § 21082.1(a).) Accordingly, it is understood that M any such consultant hired by City to prepare environmental documents, shall be under contract to and directed by City, and Developer shall not attempt to direct, influence, or otherwise control the consultant in the performance of the work. Developer shall direct any questions or concerns Developer may have to City. Section 4. Developer's Rlghts Concernina Expenses and Review of Documents. (a) Statements of Account. City shall provide Developer a summary of expenditures made from the Deposit, and the unexpended balance thereof, whenever requesting any Additional Advance and within ten (10) business days of receipt by City of a written request therefore submitted by Developer. On a monthly basis, City shall provide Developer with a cost report, including copies of each statement or invoice received from any consultant whose costs are chargeable as Eligible Expenses. (b) Review of Documents. City shall give Developer at least ten (10) days' notice of, along with copies of, any proposed contract with the environmental consultant, change orders, contract amendments, and comments on the environmental documents received from third parties so that Developer shall have the opportunity to provide comments prior to City finalizing, filing, or otherwise releasing the environmental document and responses to comments. Developer may review draft copies of all other reports and studies funded through this Agreement. Developer may discuss issues with City or its consultants and may make comments orally. City shall also use reasonable efforts to permit Developer's review with respect to agendas and staff reports for all open City Council, Planning Commission and other public body meetings at which the Project or related matters are to be considered, and by providing' Developer with draft copies thereof prior to or concurrently with the transmission of such documents to the appropriate body. It is expressly understood that ,consultants retained by City are under contract solely with City, and City is free to disregard Developer's comments and exercise its independent judgment in making payments to the consultants or revising or accepting the consultant's work product, without any liability whatsoever to Developer therefor. Section 5. No Obligation to Adopt or Certify Environmental Documents or to Approve Project Entitlements. The provisions of this Agreement shall in no way obligate City to adopt or certify the environmental documents or take any action approving the Project. City shall use its independent judgment in determining whether to approve the Entitlements and environmental documents. City may determine during the course of processing the Project application that final approval will require issuance of other permits in addition to those listed as the Entitlements in Recital B of this Agreement, due to changes in applicable state law, the Seal Beach Municipal Code, the proposed Project, or other applicable regulations or documents. In the event that City adopts the environmental documents, City shall use its independent judgment in determining the significance of any impacts, approving any mitigation monitoring and reporting program, adopting a statement of overriding considerations, or taking any other action. City shall not be liable W to Developer in any manner whatsoever therefor, other than for providing the accounting of expenses as provided in this Agreement. Section 6. Agreement Not Debt or Liability of City. It is hereby acknowledged and agreed that this Agreement is not a debt or liability of City. City shall not in any event be liable hereunder other than to return the unexpended and uncommitted portions of the Deposit as provided in Section 3(d) of this Agreement, and to provide an accounting under Section 5(a) of this Agreement. City shall not be obligated to advance any of its own funds with respect to the environmental documents or for any of the other purposes listed in Section 3(b) of this Agreement. No City official, officer, employee, or agent shall be personally liable to Developer under this Agreement to any extent. Section 7. Indemnification and Hold Harmless. (a) Non -liability of City Concerning Entitlements: The Parties acknowledge that there may be challenges to the legality, validity, and adequacy of the Entitlements and/or this Agreement in the future; and if successful, such challenges could. delay or prevent the development of the Project. City shall have no liability under this Agreement for Developer's inability to develop the Project as the result of a judicial determination that the CEQA determination, the City's action on the Entitlements, or any portions thereof, are invalid, inadequate, or not made in compliance with law. (b) Participation in Litigation: Indemnity. Developer agrees to indemnify, protect, defend, and hold harmless City and its officials, officers, employees, agents, elected boards, commissions, departments, agencies, and instrumentalities thereof, from any and all actions, suits, claims, demands, writs of mandamus, liabilities, losses, damages, penalties, obligations, expenses, and any other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to, arbitrations, mediations, and other such procedures), including, but not limited to, attorneys' fees and costs (herein the "Claims and Liabilities"), arising from or related to this Agreement or the Entitlements; and Developer shall be responsible for any monetary judgment arising therefrom, whether such Claims and Liabilities are brought under CEQA, planning and zoning laws, the Subdivision Map Act, Code of Civil Procedure Sections 1085 or 1094.5, or any other federal, state, or local statute, law, ordinance, rule, regulation, or any decision of a competent jurisdiction. Developer may be required to deposit funds to cover its indemnification obligation or to provide other security. If Developer fails to timely pay such funds, City may abandon the action without liability to Developer and may recover from Developer any attorneys' fees and other costs for which City may be liable for abandonment of the action. City shall provide Developer with notice of the pendency of such action and request that Developer pay for the costs to defend such action. It is expressly agreed that City may utilize the City Attorney's office or use other legal counsel of its choosing, and Developer shall promptly pay or reimburse City for any reasonable legal costs and fees incurred by City. If Developer fails to do so, City may defend the action and Developer shall be liable to City for the cost thereof, but if City chooses not to R1 defend the action, City shall have no liability to Developer. Developer's obligation to pay the defense costs of City shall extend until final judgment, including any appeals. Notwithstanding Developer's indemnity for Claims and Liabilities, City may abandon any litigation following an adverse judgment or settle any litigation brought against it in its sole and absolute discretion, and Developer shall remain liable, other than in the case where judgment adverse to City and Developer's position has been rendered, or where a settlement has been negotiated that is materially adverse to the Project. In the case of a settlement without an adverse judgment, City may still settle the litigation contrary to Developer, and shall then be responsible for its own litigation expense, but shall bear no other liability to Developer. If Developer chooses to reduce the scope of the Project or abandon the Entitlements in order to settle any such litigation, City shall reasonably cooperate in effecting a settlement. (c) Exception. The obligations of Developer under this Section shall not apply to any claims, actions, or proceedings arising through the gross negligence or willful misconduct of City, its members, officers, or employees. (d) Survival of Indemnity Obligations. All indemnity provisions set forth in this Agreement shall survive the expiration or termination of this Agreement. Section 8. Notices. Any notices, requests, demands, documents, approvals, or disapprovals given or sent under this Agreement from one party to another (collectively, the "Notices") shall be given to the Party entitled thereto at its address set forth below, or at such other address as such party may provide to the other parties in writing from time to time, namely: If to Developer: Devon Shay Hellman Properties LLC P.O. Box 2398 Seal Beach, CA 90740 If to City: City Manager City of Seal Beach 211 Eighth Street Seal Beach, CA 90740 With a copy to: Richards, Watson & Gershon 350 S. Grand Avenue, 37th Floor Los Angeles, CA 90071 Attn: Craig Steele 7 Each such Notice shall be deemed delivered to the Party to whom it is addressed: (i) if personally served or delivered, upon delivery; (ii) if given by fax, upon the sender's receipt of an appropriate answerback or other written acknowledgement; (iii) if given by registered or certified mail, return receipt requested, deposited with the United States mail postage prepaid, seventy-two (72) hours after such notice is deposited with the United States mail; (iv) if given by overnight courier, with courier charges prepaid, twenty-four (24.) hours after delivery to said overnight courier; or (v) if given by any other means, upon delivery at the address specified in this Section. Section 9. Choice of Law; Venue. This Agreement, and any dispute arising from the relationship between the Parties, shall be governed by, construed in accordance with, and interpreted under the laws of the State of California. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both) shall be resolved in a California State Court in the County of Orange, or if jurisdiction over the action cannot be obtained in a State Court, in a Federal Court in the Central District of California. Section 10. Entire Agreement. This Agreement represents the full, final, and complete Agreement between the parties hereto regarding the subject matter of this Agreement. No change or amendment to this Agreement shall be valid unless in writing and signed by both Parties. Section 11. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining provisions of this Agreement shall not be affected. Section 12. Attorneys' Fees. In any litigation or other proceeding by which one Party seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded reasonable attorneys' fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment. Section 13. Ambiguities. Each Party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Section 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together will constitute one instrument. H. Section 15. Authority. The persons executing this Agreement on behalf of the Parties warrant that: (i) such Party is duly organized and existing; (il) they are duly authorized to execute and deliver this Agreement on behalf of said Party; (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement; and (iv) the entering into of this Agreement does not violate any provision of any other agreement to which said Party is bound. [signatures on next page] ir s; E IN WITNESS THEREOF., the Parties have caused this Agreement to be executed on on the date first written above. APPROVED AS TO FORM: Richar o &Gershon ig eele, City Attorney Devon Shay Hellman Properties LLC P.O. Box 2398 Seal Beach, CA 90740 DEVELOPER Hellman Properties, LLC. 1 De hay, bener6PManager CITY OF SEAL BEACH ?- &TOlun Ji gram, City Manager 10