November 20, 2023
Stefanie Griffin
FirstCarbon Solutions
Via Email to: [email protected] & [email protected]
Re: Native American Tribal Consultation, Pursuant to the Assembly Bill 52 (AB 52), Amendments to the California Environmental Quality Act (CEQA) (Chapter 532, Statutes of 2014), Public Resources Code Sections 5097.94 (m), 21073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2 and 21084.3, Griffith Energy Storage Project, Los Angeles County
Dear Ms. Griffin:
Pursuant to Public Resources Code section 21080.3.1 (c), attached is a consultation list of tribes that are traditionally and culturally affiliated with the geographic area of the above-listed project. Please note that the intent of the AB 52 amendments to CEQA is to avoid and/or mitigate impacts to tribal cultural resources, (Pub. Resources Code §21084.3 (a)) (“Public agencies shall, when feasible, avoid damaging effects to any tribal cultural resource.”)
Public Resources Code sections 21080.3.1 and 21084.3(c) require CEQA lead agencies to consult with California Native American tribes that have requested notice from such agencies of proposed projects in the geographic area that are traditionally and culturally affiliated with the tribes on projects for which a Notice of Preparation or Notice of Negative Declaration or Mitigated Negative Declaration has been filed on or after July 1, 2015. Specifically, Public Resources Code section 21080.3.1 (d) provides:
Within 14 days of determining that an application for a project is complete or a decision by a public agency to undertake a project, the lead agency shall provide formal notification to the designated contact of, or a tribal representative of, traditionally and culturally affiliated California Native American tribes that have requested notice, which shall be accomplished by means of at least one written notification that includes a brief description of the proposed project and its location, the lead agency contact information, and a notification that the California Native American tribe has 30 days to request consultation pursuant to this section.
The AB 52 amendments to CEQA law does not preclude initiating consultation with the tribes that are culturally and traditionally affiliated within your jurisdiction prior to receiving requests for notification of projects in the tribe’s areas of traditional and cultural affiliation. The Native American Heritage Commission (NAHC) recommends, but does not require, early consultation as a best practice to ensure that lead agencies receive sufficient information about cultural resources in a project area to avoid damaging effects to tribal cultural resources.
The NAHC also recommends, but does not require that agencies should also include with their notification letters, information regarding any cultural resources assessment that has been completed on the area of potential effect (APE), such as:
1. The results of any record search that may have been conducted at an Information Center of the California Historical Resources Information System (CHRIS), including, but not limited to:
CHAIRPERSON
Reginald Pagaling
Chumash
VICE-CHAIRPERSON
Buffy McQuillen
Yokayo Pomo, Yuki,
Nomlaki
SECRETARY
Sara Dutschke
Miwok
PARLIAMENTARIAN
Wayne Nelson
Luiseño
COMMISSIONER
Isaac Bojorquez
Ohlone-Costanoan
COMMISSIONER
Stanley Rodriguez
Kumeyaay
COMMISSIONER
Laurena Bolden
Serrano
COMMISSIONER
Reid Milanovich
Cahuilla
COMMISSIONER
Vacant
EXECUTIVE SECRETARY
Raymond C.
Hitchcock
Miwok, Nisenan
NAHC HEADQUARTERS
1550 Harbor Boulevard
Suite 100
West Sacramento,
California 95691
(916) 373-3710
[email protected]
NAHC.ca.gov
• A listing of any and all known cultural resources that have already been recorded on or adjacent to the APE, such as known archaeological sites;
• Copies of any and all cultural resource records and study reports that may have been provided by the Information Center as part of the records search response; • Whether the records search indicates a low, moderate, or high probability that unrecorded cultural resources are located in the APE; and
• If a survey is recommended by the Information Center to determine whether previously unrecorded cultural resources are present.
2. The results of any archaeological inventory survey that was conducted, including:
• Any report that may contain site forms, site significance, and suggested mitigation measures.
All information regarding site locations, Native American human remains, and associated funerary objects should be in a separate confidential addendum, and not be made available for public disclosure in accordance with Government Code section 6254.10.
3. The result of any Sacred Lands File (SLF) check conducted through the Native American Heritage Commission was negative.
4. Any ethnographic studies conducted for any area including all or part of the APE; and
5. Any geotechnical reports regarding all or part of the APE.
Lead agencies should be aware that records maintained by the NAHC and CHRIS are not exhaustive and a negative response to these searches does not preclude the existence of a tribal cultural resource. A tribe may be the only source of information regarding the existence of a tribal cultural resource.
This information will aid tribes in determining whether to request formal consultation. In the event that they do, having the information beforehand will help to facilitate the consultation process.
If you receive notification of change of addresses and phone numbers from tribes, please notify the NAHC. With your assistance, we can assure that our consultation list remains current.
If you have any questions, please contact me at my email address: [email protected].
Sincerely,
Andrew Green
Cultural Resources Analyst
Attachment
Tribe Name Fed (F)
Non-Fed (N)
Contact Person Contact Address Phone # Fax # Email Address Cultural Affiliation Last Updated Gabrieleno Band of Mission Indians - Kizh
Nation
N Andrew Salas, Chairperson P.O. Box 393
Covina, CA, 91723
(844) 390-0787 [email protected] Gabrieleno 8/18/2023 Gabrieleno Band of Mission Indians - Kizh
Nation
N Christina Swindall Martinez,
Secretary
P.O. Box 393
Covina, CA, 91723
(844) 390-0787 [email protected] Gabrieleno 8/18/2023 Gabrieleno/Tongva San Gabriel Band of
Mission Indians
N Anthony Morales, Chairperson P.O. Box 693
San Gabriel, CA, 91778
(626) 483-3564 (626) 286-1262 [email protected] Gabrieleno Gabrielino /Tongva Nation N Sandonne Goad, Chairperson 106 1/2 Judge John Aiso St., #231
Los Angeles, CA, 90012
(951) 807-0479 [email protected] Gabrielino 3/28/2023 Gabrielino Tongva Indians of California
Tribal Council
N Christina Conley, Cultural
Resource Administrator
P.O. Box 941078
Simi Valley, CA, 93094
(626) 407-8761 [email protected]
u
Gabrielino 3/16/2023
Gabrielino Tongva Indians of California
Tribal Council
N Robert Dorame, Chairperson P.O. Box 490
Bellflower, CA, 90707
(562) 761-6417 (562) 761-6417 [email protected] Gabrielino 3/16/2023 Gabrielino-Tongva Tribe N Sam Dunlap, Cultural Resource Director
P.O. Box 3919
Seal Beach, CA, 90740
(909) 262-9351 [email protected] Gabrielino 5/30/2023 Gabrielino-Tongva Tribe N Charles Alvarez, Chairperson 23454 Vanowen Street West Hills, CA, 91307
(310) 403-6048 [email protected] Gabrielino 5/30/2023 Santa Rosa Band of Cahuilla Indians F Lovina Redner, Tribal Chair P.O. Box 391820 Anza, CA, 92539
(951) 659-2700 (951) 659-2228 [email protected] Cahuilla Soboba Band of Luiseno Indians F Joseph Ontiveros, Tribal Historic Preservation Officer
P.O. Box 487
San Jacinto, CA, 92581
(951) 663-5279 (951) 654-4198 [email protected] Cahuilla Luiseno
7/14/2023
Soboba Band of Luiseno Indians F Jessica Valdez, Cultural Resource Specialist
P.O. Box 487
San Jacinto, CA, 92581
(951) 663-6261 (951) 654-4198 [email protected] Cahuilla Luiseno
7/14/2023
Imperial,Los Angeles,Orange,Riverside,San
Bernardino,San Diego
Imperial,Los Angeles,Orange,Riverside,San
Bernardino,San Diego
Imperial,Los Angeles,Orange,Riverside,San
Bernardino,San Diego
This list is current only as of the date of this document. Distribution of this list does not relieve any person of statutory responsibility as defined in Section 7050.5 of the Health and Safety Code, Section 5097.94 of the Public Resources Code and section 5097.98 of the Public Resources Code.
This list is only applicable for consultation with Native American tribes under Public Resources Code Sections 21080.3.1 for the proposed Griffith Energy Storage Project, Los Angeles County.
Record: PROJ-2023-005567
Report Type: AB52 GIS
Counties: Los Angeles
NAHC Group: All
Los Angeles,Orange,Riverside,San
Bernardino,Ventura
Los Angeles,Orange,Riverside,San
Bernardino,Santa Barbara,Ventura
Los Angeles,Orange,Riverside,San
Bernardino,Santa Barbara,Ventura
Los Angeles,Orange,Riverside,San
Bernardino,Ventura
Los Angeles,Orange,Riverside,San
Bernardino,Ventura
Native American Heritage Commission
Native American Contact List
Los Angeles County
11/20/2023
Counties
Los Angeles,Orange,Riverside,San
Bernardino,Santa Barbara,Ventura
Los Angeles,Orange,Riverside,San
Bernardino,Santa Barbara,Ventura
Los Angeles,Orange,Riverside,San
Bernardino,Ventura
11/20/2023 02:57 PM
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City of Carson – Griffith Energy Storage Project
Pedestrian Survey
FirstCarbon Solutions
C:\Users\sgriffin\Downloads\1190.0011 Griffith Photolog.docx
Photo 1: Overview of project area from NW corner. View E.
Photo 2: Overview of project area from NW corner. View S
City of Carson – Griffith Energy Storage Project
Pedestrian Survey
FirstCarbon Solutions
C:\Users\sgriffin\Downloads\1190.0011 Griffith Photolog.docx
Photo 3: Overview of project area from NE corner. View S.
Photo 4: Overview of project area from NE corner. View W.
City of Carson – Griffith Energy Storage Project
Pedestrian Survey
FirstCarbon Solutions
C:\Users\sgriffin\Downloads\1190.0011 Griffith Photolog.docx
Photo 5: Overview of project area from SE corner. View W.
Photo 6: Overview of project area from SE corner. View N.
City of Carson – Griffith Energy Storage Project
Pedestrian Survey
FirstCarbon Solutions
C:\Users\sgriffin\Downloads\1190.0011 Griffith Photolog.docx
Photo 7: Overview of project area from SW corner. View W.
Photo 8: Overview of project area from SW corner. View N.
City of Carson – Griffith Energy Storage Project
Pedestrian Survey
FirstCarbon Solutions
C:\Users\sgriffin\Downloads\1190.0011 Griffith Photolog.docx
Photo 9: Overview of fill piles from center of project area. View NW.
Photo 10: Overview of soil from SE corner. View Plan.
City of Carson – Griffith Energy Storage Project
Pedestrian Survey
FirstCarbon Solutions
C:\Users\sgriffin\Downloads\1190.0011 Griffith Photolog.docx
Photo 11: Overview of soil from center of project area. View Plan.
Photo 12: Overview of soil from northern section project area. View Plan.
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01007.0632 2126949.1 5/6/2026
EXHIBIT “C”
DEVELOPMENT AGREEMENT NO. 33-23
[to be attached]
01007.0005 962849.20
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Carson
701 E Carson Street
Carson, CA 90745
Attn: Planning Manager
SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE
DEVELOPMENT AGREEMENT NO. 33-23
This Development Agreement ( “Agreement”) is entered into on the ____ day of ___________, 2026 (“Execution Date”), by and between the City of Carson, a charter city in the State of California ( “City”), and V ESI 27 LLC, a Delaware limited liability company (“Developer”). The City and Developer shall be referred to jointly within this Agreement as the “Parties” and individually as a “Party.”
RECITALS
A. The Development Agreement Statute. California Government Code Sections 65864 et seq. (“Development Agreement Law ”) authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private pa rticipation, and comprehensive planning and identifying the economic costs of such development.
B. Orderly Development; Public Benefits. The City Council finds that this Agreement is in the best public interest of the City and its residents, adopting this Agreement constitutes a present exercise of the City’s police power, and this Agreement is consistent with the City’s General Plan. This Agreement and the proposed Project will achieve a number of City objectives, including the orderly development of the Property and the provision of public benefits, or funds therefor, to the City and its residents.
C. The Property. The 3.00-acre property is currently vacant and is surrounded by other mixed industrial uses, and is located at 18800 South Broadway Avenue in the City of Carson, County of Los Angeles, State of California (Assessor’s Parcel Number 7339-014-009), legally described in Exhibit “A” and depicted in Exhibit “B” attached hereto , which exhibits are incorporated herein (the “Property”). The General Plan land use designation for the Property is Heavy Industrial and the Property is zoned M H-D (Manufacturing Heavy – Design Overlay). The Southern California Edison ( “SCE”) Nola Substation is located directly adjacent to the east of the Property, in the City of Carson.
D. The Project. D eveloper will demolish the existing industrial/topsoil supplier facility and construct a utility-scale, 100-megawatt Battery Energy Storage System (BESS) and associated infrastructure. L ithium-ion batteries w ill be stored within modular outdoor enclosures, and power that is released or captured by the batteries will be transferred to and from the SCE Nola Substation via an underground 66-kilovolt generation transmission (“gen-tie”) line as further detailed below.
01007.0005 962849.20 2
The facility will provide a service by receiving energy (charging) from the SCE transmission system, storing the energy, and then later delivering energy (discharging) back to SCE Nola Substation. In general, the California Independent System Operator (“CAISO”) will dispatch the system to both place energy onto the grid (discharge) during times of high load and to take energy off the grid (charge) in times of low load relative to generation. However, SCE may have different requirements for when to dispatch the system, potentially dictated by the status of critical equipment that comprises the grid.
The project consists of (i) the batteries installed in racks located in prefabricated outdoor enclosures, each housing internal racks and system control modules, thermal management, and communication systems, (ii) inverters , (iii) medium-voltage transformers , (iv) switchgear, (v) a collector substation , and (vi) other associated equipment , as further detailed below. The battery modules will be delivered to the site preassembled and moved into place by forklifts or cranes. These modules will be connected in parallel to aggregate the required energy capacity.
More specifically, the project will include the following components: (i) an energy storage facility that w ill provide energy storage capacity and dispatch for the electric grid; (ii) a battery management system to control the charging/discharging of the batteries, along with temperature monitoring and control of the individual battery cell temperature with an integrated cooling system; (iii) power inverters to convert between AC and DC, along with transformers that w ill step up the voltage; (iv) t elecommunication equipment, including underground and overhead fiber optics or Supervisory Control and Data Acquisition (“SCADA”); (v) on- site access driveways, perimeter security fencing, and nighttime directional lighting; (vi) a gen-tie line to transfer power between the SCE Nola Substation and the project, as detailed below.
The m edium-voltage transformers, inverters, switchgear, electronic switchboards, and additional electrical equipment will be installed outside the BESS enclosures. Underground wires and cabling w ill run from the battery enclosures to a concrete head, housing the inverters and medium -voltage transformers. All electrical equipment w ill be housed in appropriately rated National Electrical Manufacturers Association enclosures. All outside electrical cabling will run underground. Underground wires and cabling will run from the medium-voltage transformers to the collector substation. The collector substation w ill be located on the northeastern portion of the parcel on approximately 9,400 square feet (approximately 0.22 acre) of ground. Components will include a main power transformer, control house, and switchgear.
Industry-standard nationally (and internationally) recognized inverter equipment w ill be used for the project. The inverters w ill be stand- alone units that w ill operate in all conditions in a charge mode and discharge mode. The inverters w ill be controlled and monitored remotely, and on- site monitoring will also be provided as set forth in Section
3.8 below. On-site disconnects will be installed in case of an emergency or unscheduled maintenance. The inverters will be designed to last for no less than the full Term of this Agreement with proper preventive maintenance, schedule d maintenance, and occasional minor equipment overhauls.
01007.0005 962849.20 3
The project’s above-referenced telecommunication facilities will meet the communication requirements for interconnection and communication with the SCE/CAISO facilities and will support remote monitoring of project operations. To facilitate communication with SCE facilities, a fiber -optic cable will connect the project site switchyard with the SCE Nola Substation. Per utility interconnection regulations, a second, separate, redundant fiber-optic cable will be installed within the project site boundaries.
The project will use local exchange carrier services for telecommunication to support remote monitoring requirements. The project will connect to telecommunication fiber - optic lines owned and managed by local telecommunication providers.
The location of the project fiber optic cable lines (underground and overhead) will be substantially as shown in Exhibit “C.” Installation of the underground fiber optic cable lines will require trenching and earthmoving activities within the West Griffith Street public right-of-way and will be contingent upon City granting an easement or license to SCE or Developer, as applicable, for the location of the fiber optic cable lines in the West Griffith Street public right-of-way in exchange for fair market value consideration pursuant to a written agreement, and all required City encroachment and excavation permits. Per the Conditions of Approval, no building permits shall issue for the project unless and until such easement or license agreement has been entered into.
The SCADA system, which uses (i) proprietary software, (ii) a fiber-optic transmission system, (iii) a telephone, radio, and/or microwave communication network, and (iv) other means of communication such as radio links and phase loop communication systems, will function as a remote start, stop, reset, and tag out for the facility, thus minimizing the labor and site diagnostic information generated from the panels. The SCA DA system will also control the substation, allowing for fully- centralized operation of the project to meet all CAISO and utility interconnection requirements.
The proposed gen-tie line will start at the northeast portion of the project site, run east along the West Griffith Street frontage, and connect to the SCE Nola Substation located approximately 165 feet east of the p roject site , on the SCE Nola Substation property.
Construction and installation of the gen- tie line w ill require trenching and earthmoving activities across West Griffith Street. SCE will construct, own, and operate the gen-tie line.
To the extent the gen -tie line will be located in the West Griffith Street public right- of- way, SCE’s construction and operation of the gen-tie line will be subject to SCE’s existing franchise agreement with the City (City Ordinance No. 20; the “Franchise Agreement”).
SCE will be also responsible for obtaining any and all required City and third party approvals and permits (including City encroachment and excavation permits , and easements from third parties as needed for areas outside the public right -of-way) for construction and operation of the gen -tie line . The fin al gen -tie line routing w ill be determined by SCE during its interconnection review process, subject to SCE obtaining all required permits and approvals and provided that if the final gen -tie line routing necessitates any modifications to this Agreement, the Project Development Approvals, the Subsequent Development Approvals and/or the Development Plan, such modifications shall be subject to processing and approval as provided in applicable provisions of this Agreement.
01007.0005 962849.20 4
The project site will be accessed from existing project site driveways off South Broadway.
A perimeter wall will be installed around the project site for safety and security purposes.
Security cameras will be placed on-site and monitored 7 days per week, 24 hours per day.
Permanent motion -sensitive, directional security lights w ill be installed to provide adequate illumination around the substation area and points of ingress and egress.
Additional lighting w ill provide operations and maintenance personnel with illumination for both normal and emergency conditions. Lighting on- site will be designed to provide the minimum illumination needed to achieve safety and security objectives. The lighting will be shielded and directed downward to minimize the potential for glare or spi llover onto adjacent properties.
Stormwater treatment areas will be constructed along the northern and western boundaries of the project site (along South Broadway and West Griffith Street) to collect and treat all stormwater generated on the project site prior to be ing discharged into the adjacent municipal stormwater system, as detailed in the Stormwater Plan approved as part of the Development Plan.
Landscaping will be installed on the project site in accordance with the approved landscaping plan as part of the Development Plan. Landscaping will be provided along the northern and western boundaries of the project site.
The design of the BESS facility will comply with the National Fire Protection Association (“NFPA”) 855 Code, which dictates specific fire access, protection, and suppression requirements to ensure the safe operation of the facility , and the applicable edition of the Los Angeles County Fire Code, as adopted by the City pursuant to Carson Municipal Code Section 3100, except as otherwise approved by the Los Angeles County Fire Department (“LACFD”) pursuant to a request for modifications or alternative materials and methods (“AMMR”) review. Additionally, the BESS will be Underwriters Laboratories Inc. (UL) certified and include built -in failsafe and cooling systems designed to prevent thermal runway (i.e., uncontrollable temperature increase) and the spread of fire. The site plan will be reviewed and approved by LACFD to ensure that the project meets applicable codes as referenced above, and any conditions of approval imposed or recommended by LACFD will be complied with . Without limitation of the foregoing, the project will comply with the LACFD AMMR Results Update issued on December 11, 2025, and as may be amended, for the subject project which is identified therein as EPIC -LA Plan Number FEPC2023-3504.
The physical construction/site activities of the project will last up to 10 months, not including commissioning. Construction activities will consist of : (1) demolition; (2) site preparation; (3) system installation; and (4) testing, commissioning, and cleanup. All existing structures within the project site w ill be demolished including a small building residing in the northwest portion of the site, and removal of several concrete soil bunkers scattered throughout the site. The on-site construction workforce will peak at several dozen individuals; however, the average daily workforce on-site during construction will be one to two dozen individuals, comprising construction, supervisory, support, and construction management personnel. Construction will be limited to the days/hours of Monday through Saturday between 7:00 a.m. and 7:00 p.m.
01007.0005 962849.20 5
Once developed, the project will be monitored by a remote management system at all times, and by on- site monitoring as provided in Section 3.8 below . Remote access to battery status, meters, schedules, and other telemetry data w ill be available to off -site personnel.
The facilities will operate year-round and will be available to receive or deliver energy 24 hours per day, 365 days per year.
Typical operations and maintenance activities that will occur on the project site will include on-site monitoring as provided in Section 3.8 below ; liaison and remote monitoring administration and reporting; semi -annual and annual services; remote operations of batteries, inverters, substation, and site security and management; additional communication protocols; and repair and maintenance of the BESS, electrical transmission lines, and other project facilities. The electrical equipment and security will be automated and monitored remotely, and by on-site monitoring as provided in Section 3.8 below. The project site will mostly be unoccupied other than on-site monitoring as provided in Section
3.8 below, but will be visited periodically for equipment inspections, monitoring (beyond the standard on- site monitoring as provided in Section 3.8 below ) and testing, and maintenance as needed. Periodically, batteries and various components will be replaced or renewed to ensure optimal performance. Replaced batteries and other hazardous waste will be disposed of in accordance with applicable state and federal laws and regulations. (this Recital collectively, the “Project”).
E. On April 13, 2023, Developer filed a development permit application with the City seeking Conditional Use Permit No. 1128- 23 (“the CUP”), Design Overlay Review No. 1935- 23 (“the DOR”) and Development Agreement No. 33-23 (the “DA”), along with a project description for applicable CEQA review (collectively, the “Development Application”).
F. City finds and determines that all actions required of City precedent to approval of this Agreement have been duly and regularly taken. In accordance with the requirements of the California Environmental Quality Act (Public Resources Code § 21000, et seq . (“CEQA”), appropriate studies, analyses, reports and documents were prepared and considered by the Planning Commission and the City Council. The Project is a CEQA “project,” and the City is the lead agency for review of the Project under CEQA. A Class 32 Categorical Exemption Memorandum was prepared and reviewed by the City as lead agency for the Project (the “CatEx Memo”). The CatEx Memo demonstrates that the Project is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15332, Class 32 (In- fill Development Projects), and no exception to the categorical exemption applies under CEQA Guidelines Section 15300.2, and that the Project is not subject to CEQA pursuant to CEQA Guidelines Section 15061(b)(3) . . The CatEx Memo was prepared by the City’s environmental consultant and independently reviewed by the City.
G. On Mar 10, 2026, the Planning Commission, after giving notice pursuant to Government Code §§ 65090, 65091, 65092 and 65094, held a public hearing on the Development Application for approval of this Agreement, the CUP, and the DOR (collectively the “Entitlements”), including the associated CEQA review. Following the hearing, on March 10, 2026, the Planning Commission adopted Resolution No. 26- 2900 denying CUP No. 1128-23 and DOR No. 1935-23 and recommending that the City Council deny DA No. 33-
23. 01007.0005 962849.20 6
H. Developer timely appealed the Planning Commission’s decision to the City Council via an appeal application submitted on March 23, 2026, pursuant to Carson Municipal Code Section 9173.4 (the “Appeal”).
I. On May 5, 2026, the City Council, after provision of the public notice required by law, held a public hearing to consider the Appeal and the Planning Commission’s recommendation for denial of DA No. 33-23. The City Council independently reviewed the proposed CEQA analysis and findings (including but not limited to the CatEx Memo) and the Project as a whole, and following the conclusion of the hearing on ________, 2026, introduced and conducted first reading of the Adopting Ordinance, and adopted Resolution No. 26-___, finding a Class 32 Categorical Exemption and a CEQA Guidelines Section 15061(b)(3) exemption from CEQA with respect to DOR No. No. 1935- 23 and CUP No. 1128-23 and approving DOR No. 1935-23 and CUP No. 1128-23 subject to the Conditions of Approval, contingent upon adoption and effectiveness of the Adopting Ordinance. On _______ __, 2026, the City Council conducted second reading and adopted the Adopting Ordinance. The City Council found on the basis of substantial evidence based on the entire administrative record, that this Agreement is consistent with all applicable plans, rules, regulations and official policies of the City.
J. Adoption of DIF Program. On April 16, 2019, the City Council adopted Ordinance No. 19- 1931 to implement the City’s Interim Development Impact Fee Program (“DIF Program”) to establish an interim Development Impact Fee (“ DIF”) schedule applicable to new development within the City. DIFs are valuable tools to fund infrastructure needs associated with new/additional development within the City pursuant to Government Code Sections 66000 et seq. DIFs serve the purpose of allowing the City to recover from ea ch new development project a reasonable and proportional share of the cost of public facilities and infrastructure improvements that serve or will benefit that development.
K. Agreed-Upon Payment of DIF Amount. City staff and its rate consultants have analyzed the draft “Development Impact Fee Study” and currently- available fee study data, and potential impacts upon public facilities and infrastructure attributable to the Project, in order to accurately estimate the DIFs that would be applicable to the Project. Project DIF amounts in this Agreement were estimated by reviewing the individual Project and its direct relationship to the impacts created by the Project, and the fees collected, and it was determined that the amounts of the fees are roughly proportional to the Project’s specific impacts. Based on such analyses, the parties hereto mutually agree that Project impacts warrant a one-time DIF payment of $189,093.12, calculated at $3.68 per square foot for all square footage of Project battery enclosures (51,384 square feet), which amount is to be paid on or prior to the date of the final inspection or the date the certificate of occupancy is issued for the Project , whichever occurs first, and is subject to adjustment as set forth in Section 3.1 below depending on the timing of payment . All payments for DIFs pursuant to this Agreement are hereinafter referred to as the “DIF Amount.” The parties agree that such DIF A mount is (1) directly related to the impacts of the Project, and (2) roughly proportional to the specific impacts upon public facilities and infrastructure attributable to the Project.
L. CFD Formation. On November 7, 2018, the City formed a Master CFD entitled City of Carson Community Facilities District No. 2018 -01 (Maintenance and Services) (the 01007.0005 962849.20 7
“Citywide CFD”). Developer is not and will not be required to annex the Property into the Citywide CFD or to pay the special taxes that are imposed on properties which are annexed into the Citywide CFD.
M. Developer’s Interest in the Property. Developer has a current leasehold interest in the Property, with the lease term having begun on September 1, 2022, commencing with an Initial Term which ends on September 1, 2026, followed by an Operational Term, with a duration of up to 27 years (consisting of a 12-year Term, plus options for three (3) five (5) year Extension periods) and any amendments thereto extending the Lease Term. As such, Developer possesses the requisite legal or equitable interest in the Property under Government Code Section 65865 that allows the Parties to enter into this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. GENERAL DEFINITIONS.
In addition to those terms defined within the above Recitals and elsewhere within this Agreement, the following terms shall bear the meanings set forth below:
1.1 “Adopting Ordinance ” means Ordinance No. _______ approving this Agreement, introduced on ________, 2026, and adopted on ____________, 2026.
1.2 “Agreement” means this Development Agreement, including all of its exhibits.
1.3 “Annual Review” means the annual review of the Developer ’s performance under this Agreement in accordance with Article 6 of this Agreement.
1.4 “Applicable Laws” means, collectively, the following:
a. The Project Development Approvals ( including the Conditions of Approval).
b. The Existing Land Use Regulations.
c. Subsequent Development Approvals.
d. Those Subsequent Land Use Regulations to which Developer has agreed in writing.
1.5 “Approval Date ” means the date on which the City Council adopted the Adopting Ordinance. That date is _________________, 2026.
1.6 “CDTFA” means the California Department of Tax & Fee Administration.
1.7 “Citywide CFD” shall have the meaning set forth in Recital J. 01007.0005 962849.20 8
1.8 “City” means the City of Carson, a California charter city.
1.9 “City Council” means the City Council of the City of Carson.
1.10 “CMC” means the Carson Municipal Code.
1.11 “Conditions of Approval” means all conditions imposed on the Project by the City, including (without limitation) those recommended by the Los Angeles County Fire Department, as part of the approval of the Project.
1.12 “Confirmed Sales Tax Revenue” means all Sales Tax revenue collected by the City from the purchase or sale of Project batteries that City can reasonably confirm, pursuant to Section 3.3 of this Agreement, was generated for and collected by the City.
1.13 “Developer” means VESI 27 LLC, a Delaware limited liability company, and its successors and assigns to all or any part of the Property.
1.14 “Developer’s Vested Right” means Developer’s right to complete the Project in accordance with, and to the full extent of, the Project Development Approvals in accordance with the Existing Land Use Regulations.
1.15 “Development” means the improvement of the Property for the purposes of completing the structures, improvements, and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and other facilities and improvements necessary or appropriate for the Project, and the maintenance, repair, or reconstruction of any building, st ructure, improvement, landscaping or facility after the construction and completion thereof.
1.16 “Development Plan” means Developer’s plan for completion of the Project in compliance with and to the full extent of the Project Development Approvals and Applicable Laws.
1.17 “DIF(s)” means Development Impact Fees agreed to by Developer pursuant to Section 3.1 hereof.
1.18 “Director” means the City’s Community Development Director, or his or her designee.
1.19 “Effective Date” means the date on which the Adopting Ordinance becomes effective, typically thirty (30) days after the second reading of the Adopting Ordinance.
1.20 “Entitlements” means this Agreement, the CUP, and the DOR, including the associated CEQA review.
1.21 “Exhibit” means an exhibit to this Agreement, unless otherwise specifically referenced to a different agreement or document. The following exhibits are incorporated into the Agreement by reference as though set forth in full:
Exhibit A Legal description of the Property
01007.0005 962849.20 9
Exhibit B Depiction of the Property
Exhibit C Detail of fiber optic cable line routes
1.22 “Existing Land Use Regulations ” means (i) all Land Use Regulations in effect on the Approval Date and (ii) any changes to Land Use Regulations enacted on or after the Approval Date and before the Effective Date for which Developer has provided its written consent to allow those changes to apply to the Project.
1.23 “Land Use Regulations” are laws and regulations enacted through legislative actions of the City Council. Land Use Regulations include ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other actions of City, including but not limited to the City ’s General Plan and the CMC (including the Carson Zoning Ordinance, Chapter 1 of Article IX of the CMC), which affect, govern or apply to the development and use of the Property, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement, and construction standards and specifications applicable to the Project. “Land Use Regulations” do not include (i) Project Development Approvals, (ii) regulations relating to the conduct of business, professions, and occupancies generally, (iii) taxes and assessments, (iv) regulations for the control and abatement of nuisances, (v) health and safety regulations, or (vi) any other matter reserved to the City pursuant to Article 5 of this Agreement.
1.24 “Mortgage” means a mortgage, deed of trust, or other security instrument encumbering the Property.
1.25 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender, or each of their respective successors and assigns.
1.26 “Project” as described this Agreement, means the development of the Property as described in Recital D, consistent with and to the full extent of the Project Development Approvals and all applicable Land Use Regulations.
1.27 “Project Development Approvals ” means all Project-specific approvals, including, but not limited to, the Entitlements (minus this Agreement), the Conditions of Approval, Project-specific plans, maps, permits, site plans, design guidelines, variances, conditional use permits, grading, building, and other similar permits, environmental findings and assessments, and any amendments, addenda or modifications to those matters, which were applied for by Developer and are approved by City as required or permitted by the Applicable Laws in order for Developer to complete the Project, provided that those Project Development Approvals are consistent with Developer’s Vested Right, this Agreement, and the Applicable Laws. The Entitlements (minus this Agreement), as examples of Project Development Approvals, have been or are anticipated to be approved, subject to the Conditions of Approval, prior to or in conjunction with the approval of this Agreement. “Project Development Approvals” do not include (i) rules, regulations, policies, and other enactments of general application within the City, (ii) legislative enactments, including this Agreement, or (iii) Land Use Regulations.
1.28 “Property” means the real property described in Exhibit “A” and shown in Exhibit “B.”
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1.29 “Reservation of Authority” means the limitations, reservations, and exceptions to Developer’s Vested Right set forth in Article 5 of this Agreement.
1.30 “Sales Tax” means and includes both (i) the sales and use tax referenced in Chapter 1 of Article VI of the CMC and (ii) the transaction and use tax referenced in Chapter
1.5 of Article VI of the CMC.
1.31 “Subsequent Land Use Regulations ” means those Land Use Regulations which are both adopted and effective on or after the Approval Date and which are not included within the definition of Existing Land Use Regulations.
1.32 “Subsequent Development Approvals” means all Project-specific approvals issued subsequent to the Effective Date in connection with development of the Property, which shall include, without limitation, any changes to the Project Development Approvals.
1.33 “Term” shall have the meaning ascribed to it in Section 2.1, unless earlier terminated as provided in this Agreement.
1.34 “Commercial Operation Date” or “COD” shall mean the date on which the Project is fully constructed, tested, and capable of operating on a continuous commercial basis, has passed final inspection, and has received all required approvals for interconnection and operation from the applicable utility and/or grid operator, including Southern California Edison, as evidenced by written confirmation provided to the City. COD shall not be deemed achieved until Developer provides written certification to the City, together with supporting documentation reasonably acceptable to the City, confirming satisfaction of the foregoing requirements.
2. TERM & GENERAL COVENANTS.
2.1 Term; Extensions.
a. Initial Term. The term of this Agreement (the “ Term”) starts on the Effective Date and unless extended pursuant to subsection (b) below, shall expire on either (i) March 1, 2047, or (ii) the date of expiration or termination of Developer’s leasehold interest in the P roperty, whichever occurs sooner, subject to any early termination provisions described in this Agreement.
b. Extensions. Subject to any early termination provisions described in this Agreement and subject to expiration pursuant to clause (ii) of subsection (a) above, Developer shall have the option to extend the expiration date stated in clause (i) of subsection (a) above, to the extent it applies, in one-year increments (each, an “Annual Extension Option”), for a total of up to five (5) years (i.e., to as late as March 1, 2052). In order to exercise any Annual Extension Option, Developer must, no less than 30 days prior to the then- applicable stated expiration date: (i) give City written notice of Developer’s intent to exercise the applicable Annual Extension O ption; and (ii) make a lump sum payment to the City in the amount of $128,562.00 corresponding to the applicable Annual Extension Option (“the Annual Extension Fee”). 01007.0005 962849.20 11
For the avoidance of doubt, any Annual Extension Fee that may be paid by Developer pursuant to this subsection shall not be subject to refund or proration in the event this Agreement expires pursuant to clause (ii) of subsection (a) above or is terminated pursuant to any early termination provisions of this Agreement at any time after the corresponding Annual Extension Option period has begun.
2.2 Project Completion. Developer shall achieve the COD for the Project no later than five (5) years from the Effective Date. If Developer fails to achieve COD by such date , Developer shall pay to the City liquidated damages in the amount of $7,500 per day, for each day of delay, capped at a maximum of $2,500,000. City and Developer acknowledge and agree that it is impracticable or extremely difficult to determine what the actual damages to City would be for a violation of this requirement by Developer, and how those damages might be calculated; (ii) they have made a reasonable endeavor to estimate fair compensation for such a violation; and (iii) upon doing so, they have concluded that the foregoing liquidated damages amount represents a fair and reasonable estimate of such damages.
2.3 Binding Effect of Agreement . From and following the Effective Date, actions by the City and Developer with respect to the development of the Property for completion of the Project, including actions by the City on applications for Subsequent Development Approvals affecting the Property shall be subject to the terms and provisions of this Agreement.
2.4 Agreement Runs with the Land. This Agreement shall be recorded and shall run with the land. Pursuant to Government Code Section 65868.5, the burdens of this Agreement and each of its provisions shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties, including, but not limited to, all parties that enter into lease agreements with Developer for possession of any part of the Property.
2.5 Covenant Against Discrimination. The Developer covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation or gender preference, national origin, or ancestry in the performance of this Agreement. The Developer shall take affirmative action to e nsure that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation or gender preference, national origin, or ancestry.
3. DEVELOPER’S OBLIGATIONS.
As consideration for the granting of Developer’s Vested Right in accordance with Article 4 below and subject to the City’s Reservation of Authority set forth in Article 5 below, Developer shall do the following:
3.1 Development Impact Fees. Developer shall make a one-time payment to the City for the DIF Amount of $189,093.12, calculated at $3.68 per square foot for all square footage of battery enclosures (51,384 square feet) , which DIF A mount shall be adjusted as described in Section 3.1(a)-(b) below depending on the timing of payment . The Parties agree that the DIF Amount is (1) directly related to the impacts of the Project, and (2) roughly proportional to the specific impacts upon public facilities and infrastructure attributable to the Project. Developer 01007.0005 962849.20 12
agrees to release, defend , indemnify and hold the City harmless from any and all claims, costs (including attorneys’ fees) and liability for any damages, which may arise, directly or indirectly, from the City’s determination, calculation, or imposition of, or Developer’s agreement to pay, the DIF Amount.
a. Timing of Payment of DIF Amount. The DIF Amount is payable in full prior to issuance of a certificate of occupancy or up to twelve (12) months following the issuance of the building permit for the Project , whichever occurs first.
b. DIF Amount Adjustments. All DIF Amounts shall be adjusted annually in accordance with the State of California Construction Cost Index (prior March to current March adjustment) on July 1
st of each year.
3.2 O&M Payment. Developer agrees to pay City a lump sum amount of $357,006 (the “O&M Payment”) for general operations and maintenance expenses of the City. Developer shall make the O&M Payment in one lump sum to City prior to issuance of any building permits for the Project, and such payment is a condition precedent to such permit issuance . For the avoidance of doubt, the O&M Payment does not constitute and is not intended to pay the Citywide CFD special taxes.
3.3 Battery Fee. Developer shall pay City a “Battery Fee” in an amount equal to the sum of $1,487,500 (the “Maximum Battery Fee Amount”) less the total amount of Confirmed Sales Tax R evenue collected by the City , subject to a guaranteed minimum of $250,000 (the “Minimum Battery Fee Amount”). Within thirty (30) days of the Effective Date, Developer shall pay City the Minimum Battery Fee Amount via wire transfer . Prior to the issuance of any demolition, grading or building permits, Developer shall provide City with a bond, on a form reasonably acceptable to the Director and City Attorney, securing payment of the Battery Fee, in an amount equal to the Maximum Battery Fee Amount less the Minimum Battery Fee Amount (the “Bond”), and the issuance and effectiveness of such Bond shall be a condition precedent to such permit issuance. The Bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his/her power of attorney. The Bond shall be unconditional and remain in force during the entire term of this Agreement until released pursuant to Section 3.3(a), below, and shall be binding on the successors- in-interest of the obligor/principal (i.e., Developer) and surety. The Bond shall be issued by a company qualified to do business in California, rated “A” or better in the most recent edition of Best’s Rating Guide, The Key Rating Guide or in the Federal Register, and having a financial category Class VII or better, and shall provide for the City to receive at least 30 days’ prior notice from the surety, via the means specified in Section 13.2, below, of any impending cancellation or lapse in effectiveness of the Bond due to nonpayment of premiums or any other reason. a. Confirmed Sales Tax Revenue; Effect on Battery Fee. No later than sixty (60) days after the expiration of time for Developer to provide City comments on the Confirmed Sales Tax Revenue Determination pursuant to subsection (b) below, City shall calculate the amount of the Battery Fee by subtracting the Confirmed Sales Tax Revenue from the Maximum Battery Fee Amount (except that in no event shall the Battery Fee be reduced below the Minimum Battery Fee Amount) and notify Developer in writing of same 01007.0005 962849.20 13
(the “Battery Fee Notice”). If the Battery Fee in the Battery Fee Notice is equal to the Minimum Battery Fee Amount, then no later than thirty (30) days following the date the Battery Fee Notice is delivered to Developer and Developer’s subsequent written request, City shall release or authorize cancellation of the Bond. If the Battery Fee in the Battery Fee Notice is greater than the Minimum Battery Fee Amount, within sixty (60) days of receipt of the Battery Fee Notice, Developer shall pay to City the amount of the Battery Fee less the Minimum Battery Fee Amount. Notwithstanding any other provision of this Agreement, in the event Developer fails to timely pay said amount, City shall have the right to immediately call and receive the proceeds of the Bond in an amount reflective of the Confirmed Sales Tax Revenue . No final Certificate of Occupancy shall issue until the Battery Fee has been paid in full. A temporary Certificate of Occupancy (“TCO”) may issue prior to the Battery Fee being paid in full provided (without limitation as to other applicable requirements for issuance of a TCO or payment of the Battery Fee) Developer demonstrates to the satisfaction of the Director that the Bond is and will be effective and binding on Developer and any premiums are paid for at least one year beyond the date of issuance of the TCO. If a TCO issues prior to the Battery Fee being paid in full pursuant to this paragraph, then the maximum cumulative term (i.e., total duration) of effectiveness of the TCO shall not exceed one year; if one year of cumulative effectiveness of the TCO elapses without issuance of a final Certificate of Occupancy and the Battery Fee has not been paid in full, then (i) the City may immediately revoke Developer’s business license and not reinstate it until the Battery Fee is paid in full, and (ii) the TCO will immediately and automatically lapse and terminate and full payment of the Battery Fee shall be required as a pre-requisite to any further, extended or renewed effectiveness of the TCO or an y issuance of a final Certificate of Occupancy. No later than thirty (30) days following such payment by Developer and Developer’s written request, City shall release or authorize cancellation of the Bond.
b. Tracking of Battery Fee. No later than forty-five (45) days following the filing with the CDTFA of the Sales Tax return that reports sales tax on the sale of the Project batteries to Developer, Developer will provide City with copies of all information that Developer considers reasonably relevant to determining the Confirmed Sales Tax Revenue, which shall include, without limitation, (i) invoices for the purchase of the Project batteries reflecting the amount of Sales Tax charged, (ii) evidence of payment of the invoice amount to the retailer of the Project batteries, (iii) all Sales Tax returns filed with the CDTFA related to the sale and purchase of Project batteries, (iv) identification of the accounts that are or will be reporting the Sales Tax related to the sale and purchase of the Project batteries, and (v) evidence of remittance to the CDTFA of the amount reflected as due on the Sales Tax Returns (provided Developer shall have the right to first redact any portions of such documents which are privi leged or which are not relevant to determining the Confirmed Sales Tax Revenue). Within one hundred eighty (180) days of receipt of such information from Developer, 01007.0005 962849.20 14
City, with cooperation from Developer as may be reasonably requested by City, will undertake a reasonable and good faith analysis of the Sales Tax returns and other information provided by Developer, together with any other information reasonably deemed re levant by City, and will thereby ascertain the Confirmed Sales Tax Revenue and notify Developer in writing of such determination (the “ Confirmed Sales Tax Revenue Determination”). In the event the Confirmed Sales Tax Revenue is less than the Maximum Batte ry Fee Amount, such Confirmed Sales Tax Revenue Determination shall describe in detail the information relied upon by the City in calculating the Confirmed Sales Tax Revenue and, upon request by Developer, City shall provide such information to Developer (to the extent such information was not provided to City by Developer and such disclosure is not prohibited by law). Developer shall have thirty (30) days following the later of (i) receipt of the Confirmed Sales Tax Revenue Determination, or (ii) receipt of the information requested from City pursuant to this subs ection (b), to provide any comments or additional information to City regarding the determination of the Confirmed Sales Tax Revenue, which information the City shall consider in good faith. c. For the avoidance of doubt, the foregoing relates only to the determination of the amount of the Battery Fee; in all circumstances, in addition to the Battery Fee, City shall be entitled to all Sales Tax revenue generated to the City from the Project, irrespective of the amount of Confirmed Sales Tax Revenue and/or the amount of the Battery Fee.
3.4 Pre-Operation Safety Meetings. At least 30 days prior to issuance of a certificate of occupancy for the Project, Developer shall conduct two safety meeting s, to be held at least 30 days apart from one another, in coordination with the Los Angeles County Fire Department for the benefit of the public as it relates to the presence and operation of the Project on the Property. The safety meetings shall cover, without limitation, alarm protocols, evacuation routes, and battery energy storage safety basics. The meetings shall be open for the public to attend, and Developer shall provide mailed written notice to the City and all properties within a 2,500 radius of the Property at least 10 days prior to each meeting.
3.5 Annual Safety Meetings . After issuance of a certificate of occupancy for the Project, on an annual basis throughout the life of Project operations, Developer shall conduct a safety meeting in coordination with the Los Angeles County Fire Department for the benefit of the public as it relates to the presence and operation of the Project on the Property. The annual meetings shall be open for the public to attend, and Developer shall provide mailed written notice to the City and all properties within a 2,500 radius of the Property at least 10 days prior to each annual meeting.
3.6 Emergency Evacuation Plan . Prior to issuance of a certificate of occupancy for the Project, Developer shall prepare a comprehensive written emergency evacuation plan, detailing protocol, processes and procedures for evacuating affected areas as necessary to protect public health and safety in the event of a fire, explosion or other incident at the Project site during Project operations. The plan shall include, without limitation, primary and secondary evacuation routes, staging areas, traffic control, and emergency communication protocols. Developer shall submit the 01007.0005 962849.20 15
plan to the Los Angeles County Fire Department and the Los Angeles County Sheriff’s Department, and must obtain both agencies’ approval of the plan and submit to the City a copy of the approved plan, together with proof of such agencies’ approval thereof, prior to issuance of a certificate of occupancy for the Project.
3.7 Telephone Hotline. Prior to issuance of a certificate of occupancy for the Project, Developer shall establish a telephone hotline, which shall be monitored and responded to by Developer at all times throughout the life of Project operations, for members of the public and the City to call to ask questions, make comments, submit complaints, or report safety concerns related to the Project operations. The existence of the telephone hotline and the associated telephone number shall be publicized and made publicly available by the Developer . The City may also publicize and make publicly available t he existence of the telephone hotline and the associated telephone number as Developer’s telephone hotline, and may call the telephone hotline for its intended purposes, but the City shall bear no responsibility whatsoever related to the telephone hotline, the associated telephone number, or the calls thereto.
3.8 On-Site Project Monitoring. Developer shall maintain at least one employee on - site at all times throughout the life of Project operations to provide on- site monitoring of the Project, which shall be in addition to the above-referenced remote Project monitoring activities, to help ensure early detection and prevention of any fires, explosions, toxic releases, or other hazardous or emergency incidents at the Property, and to help ensure that appropriate corrective/mitigating action and notification, alarm and/or evacuation measures are taken without delay if and when such an incident occurs.
3.9 High School Summer Internships. Developer shall pay the City $40,000 annually for the term of this Agreement, with the first payment due prior to issuance of building permits for the Project, to provide funding for the City to establish and maintain (potentially in partnership with relevant local private companies) a program of paid summer internships for high school students enrolled in schools located in the City of Carson, which internships shall be focused on renewable energy, battery technology and zero-emission systems.
3.10 Towne Avenue Elementary School Community Gardens . Developer shall pay the City $ 25,000 annually for the term of this Agreement, with the first payment due prior to issuance of building permits, to provide funding for the City to establish and maintain community gardens and environmental education programs at or in partnership with Towne Avenue Elementary School. If so directed by the City in any given year, Developer shall make the annual payment directly to Towne Avenue Elementary School.
3.11 Youth Sports Programming. Developer shall pay the City $30,000 annually for the term of this Agreement, with the first payment due prior to issuance of building permits, to provide funding for the youth sports programming of the City’s Community Services Department.
3.12 Carson Experience. Developer shall make a one -time contribution in the amount of $100,000 in sponsorship of the Carson Experience in connection with the Los Angeles 2028 Olympic Games-related events that will occur in the City.
3.13 Costs of Incident Responses to Property . Developer shall be responsible to reimburse the City for its costs of all law enforcement, public safety and fire department responses (e.g., City Public Safety & Emergency Management Department, Los Angeles County Sheriff’s 01007.0005 962849.20 16
Department as contracted by City, Los Angeles County Fire Department as contracted by City) to the Property throughout the life of Project operations. This includes responses to specific incidents occurring at the Property as well as the City’s incremental costs of increasing the level of services provided or contracted for by the City as reasonably determined necessary by the City as a result of the Project. This also includes costs of temporary relocation of residents in the event that any City residents are required to evacuate and remain out of their residences for one or more nights due to an incident occurring at the Project Site. Prior to issuance of a certificate of occupancy for the Project, Developer shall submit to City an advance deposit in the amount of $500,000, to be held by the City in a separate account and applied toward these obligations, and Developer shall thereafter replenish the deposit as requested by the City in writing, within 10 days of City’s request, as necessary to maintain a minimum deposit balance of no less than $250,000. Any deposit balance remaining unspent at the end of the life of Project operations shall be refunded to Developer within 30 days of Developer’s written request to City therefor. City shall keep an accounting of the deposit amounts which have been paid to City by Developer pursuant to this section. Upon written request, City shall provide an account summary of the account to Developer, which shall include descriptions of the City costs, including the date, amount, and the type of activity for which the cost was incurred. Failure of City to provide any accounting shall not excuse Developer’s duty to perform any act, including the duty to make full and timely deposits required under this Section.
Developer may question or challenge any City c osts set forth in the accounting and may appeal same to the City Council.
3.14 Point of Purchase and Sale of Electricity. Developer shall pay the City an amount equivalent to $1.50 for each megawatt-hour (MWh) of electricity transferred to or from the Project.
Payments shall be made annually, with the first annual payment due within 15 days of the first anniversary of the COD (the “Due Date ”), for the first one -year period commencing from the COD, and subsequent annual payments due on each anniversary of the Due Date for the subsequent one-year periods, respectively. Commencing on the first anniversary of the COD, and on each anniversary thereafter, the above -referenced per-megawatt-hour rate shall increase by 3% , compounded year over year . Notwithstanding the foregoing, the total annual payment required pursuant to this Section shall be capped at $1,500,000 in any given one -year payment period.
Payments made under this Section shall be used by the Cit y for public health, safety and welfare purposes, in the City’s sole discretion.
3.15 Perimeter Wall Height . The perimeter wall that will be installed around the Project site for safety and security purposes shall be 13’ in height, increased from the 10’ that was previously proposed or recommended for the Project.
3.16 Investment Tax Credit Participation. Developer shall pay to City an amount equal to one and one-half percent (1.5%) of any net proceeds generated or received by Developer from any sale, transfer or other monetization of any federal Investment Tax Credits (ITC) associated with the Project. Payment(s) shall be made within sixty (60) days of any ITC sale, transfer or other monetization, together with notice of the transaction, a statement of the full monetization amount, and any other information that may be requested by the City Manager or designee as necessary to enable the City to verify compliance with this section.
3.17 Decommissioning; Security. At the end of Project life , Developer shall promptly decommission and remove the Project and all Project-related facilities from the Property. Prior to COD, Developer shall post a cash -funded bond or irrevocable letter of credit in an amount equal 01007.0005 962849.20 17
to 100% of the estimated cost to decommission and remove the Project and all Project -related facilities, as determined by the City Engineer or designee . No parent company guarantee will suffice to satisfy this obligation. The estimated cost, once initially determined, shall automatically increase annually by 3%, and shall be recalculated by the City Engineer or designee every 5 years.
4. DEVELOPMENT OF THE PROPERTY.
4.1 Scope of Developer’s Vested Right. Subject to the Reservation of Authority set forth in Article 5, Developer shall have the vested right to develop the Project to the full extent permitted under the Applicable Laws and this Agreement (“Developer’s Vested Right”).
4.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings and structures , and the design, improvement and construction standards and specifications applicable to the Development of the Property, shall be as set forth in the Existing Land Use Regulations which were in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement.
4.3 Rights under State and Federal Law. Developer shall retain all rights it has under state and federal law, including, but not limited to, Developer’s rights under Government Code Section 65865.2.
4.4 Apportionment. Developer shall have the right to apportion the uses and intensities of the Project between itself and any subsequent owners, upon the sale, transfer, or assignment of all or any portion of the Property, so long as such apportionment is consistent with the Applicable Laws and this Agreement.
4.5 Lesser Development. Without amending this Agreement, Developer shall have the right to elect to develop and construct upon all or any portion of the Property a Project of lesser height or building or structure size than that permitted by the Project Development Approvals provided that the Project otherwise complies with the Project Development Approvals and this Agreement.
4.6 Project Development Approvals; Subsequent Development Approvals.
The Project Development Approvals for the Project may require the processing of Subsequent Development Approvals. Subject to the provisions of Section 4.7 below, the City shall accept for processing, review and action, all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters in accordance with the Existing Land Use Regulations. The parties acknowledge that subject to the Existing Land Use Regulations, under no circumstances shall City be obligated in any manner to approve any Subsequent Development Approval, or to approve any Subsequent Development Approval with or without any particular condition. However, unless otherwise requested by Developer, City shall not , without authority pursuant to the Existing Land Use Regulations, amend or rescind any Subsequent Development Approvals respecting the Property after such approvals have been granted by the Cit y. Processing of Subsequent Development Approvals or changes in the Project Development Approvals made pursuant to Developer’s application shall not require an amendment to this Agreement. This Agreement shall not prevent 01007.0005 962849.20 18
City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Existing Land Use Regulations.
4.7 Role of Project Development Approvals . Except as provided within this Agreement, the Project Development Approvals shall exclusively control the uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings or structures, the provisions for reservation or dedication of land for public purposes , and the design, improvement, and construction standards and specifications applicable to the Project.
4.8 Moratorium. Notwithstanding any other provision of this Agreement, no future amendment of any existing City ordinance or resolution or any subsequent ordinance, resolution or moratorium, enacted either by the City Council or by voter approved initiative, that purports to impose or result in a limitation on the Project, imposed by City, shall apply to govern, or regulate the Project or development or use of the Developer Property during the Term. In the event of any such subsequent action by City, Deve loper shall continue to be entitled to apply for and receive Project Development Approvals or Subsequent Development Approvals in accordance with the Existing Land Use Regulations, subject only to the exercise of the City’s Reservation of Authority set forth herein.
4.9 Maintaining Property. The Property must at all times be maintained and generally kept in a clean condition, in accordance with the City’s Code Enforcement regulations.
5. CITY’S RESERVATION OF AUTHORITY.
Notwithstanding Developer ’s Vested Right, the Project is subject to the following Subsequent Land Use Regulations:
5.1 City’s Discretion Under Applicable Law s. In considering future applications, if any, for a Subsequent Development Approval, the City may exercise its regulatory discretion to the extent permitted by the Applicable Laws.
5.2 Uniform Codes. Changes adopted by the International Conference of Building Officials, or other similar body, as part of the then most current versions of the Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National Electrical Code, or other such Uniform Codes, and also adopted by City as Subsequent Land Use Regulations, but only if applicable City- wide as of the date a complete application is submitted for City plan check for each required Project building permit.
5.3 Emergencies. Emergency rules, regulations, laws, and ordinances within the City’s police power that would limit the exercise of Developer ’s Vested Right ( “Conflicting Emergency Regulations”), provided that the Conflicting Emergency Regulations:
a. Result from a sudden, unexpected emergency declared by the President of the United States, Governor of California, County Board of Supervisors and applicable to incorporated areas, including the City, or the City Council; b. Address a clear and imminent danger, with no effective reasonable alternative available that would have a lesser adverse effect on Developer’s Vested Right;
01007.0005 962849.20 19
c. Do not primarily or disproportionately impact the development of the Project; and
d. Are based upon findings of necessity established by a preponderance of the evidence at a public hearing.
5.4 Laws of Other Jurisdictions. Other public agencies not subject to control by City may possess authority to regulate aspects of the Project. This Agreement does not limit the authority of such other public agencies. Therefore:
a. Federal, state, county, and multi -jurisdictional laws and regulations (the “Additional Regulations”), including regional impact fees, which City is required to enforce against the Property or the Project. b. If an Additional Regulation is enacted after the Effective Date and prevents or precludes compliance with one or more of the provisions of this Agreement, those provisions shall be modified or suspended as may be necessary to comply with the Additional Regulation. In that event, this Agreement shall remain in full force and effect to the extent it is not inconsistent the Additional Regulation and to the extent that the suspension or modification necessitated by the Additional Regulation does not deny one of the Parties its primary benefits under this Agreement. c. Developer shall apply in a timely manner for such other permits and approvals that are lawfully required by other governmental or quasi - governmental agencies in order to allow the Project to be constructed. City shall provide Developer reasonable cooperation in Developer ’s efforts to obtain such permits and approvals. The Parties shall cooperate and use reasonable efforts in coordinating the implementation of the Development with other public agencies, if any, having jurisdiction over the Property or the Project.
5.5 Modification or Suspension by Federal or State Laws. In the event that Federal or State laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to com ply with such Federal or State laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulation s and to the extent such laws or regulations do not render such remaining provision impractical to enforce.
5.6 Energy Efficient and Sustainable Building Design. All Project buildings shall promote sustainable and energy efficient practices through compliance with California Code of Regulations, Title 24.
5.7 Employment Outreach for Local Residents. A goal of the City with respect to this Project and other major projects within the City is to foster employment opportunities for Carson residents. To that end, Developer covenants that with respect to the construction, operation and maintenance of the Project, the Developer shall make reasonable efforts to cause all solicitations for full or part- time, new or replacement, employment relating to the 01007.0005 962849.20 20
construction, operation and maintenance of the Project to be advertised in such a manner as to target local City residents and shall make other reasonable efforts at local employment outreach as the City shall approve. Developer represents and warrants to the City that it will hire no less than 150 union carpenters for construction of the Project. Developer shall also notify the City of jobs available at the Project such that the City may inform City residents of job availability at the Project. Developer will inform its purchasers, sellers and lessees of the provisions of these requirements. Nothing in this paragraph shall require Developer to offer employment to individuals who are not otherwise qualified for such employment. Without limiting the generality of the foregoing, the provisions of this Section 5.7 are not intended, and shall not be construed, to benefit or be enforceable by any person whatsoever other than City.
5.8 Prevailing Wages. Developer’s cost of developing the Project and constructing all of the on-site and off-site improvements, if any, at or about the Property required to be constructed for the Project shall be borne by Developer. Developer is aware of the laws of the State governing the payment of prevailing wages on public projects and will comply with same and will defend, hold harmless, and indemnify City in the event Developer fails to do so.
As the City is not providing any direct or indirect financia l assistance to Developer, the Project should not be considered to be a “public work” “paid for in whole or in part out of public funds,” as described in California Labor Code Section 1720. Accordingly, it is believed by the parties that Developer is not required to pay prevailing wages in connection with any aspect of the Development or the construction of the Project. However, to the extent that (contrary to the parties’ intent) it is determined that Developer was required to pay prevailing wage and has not paid prevailing wages for any portion of the Project, Developer shall defend, indemnify, and hold the City (which, for purposes of this section, shall include its related agencies, officers, employees, agents and assigns) harmless from and against any and all increase in construction costs, or other liability, loss, damage, costs, or expenses (including reasonable attorneys ’ fees and court costs) arising from or as a result of any action or determination that Developer failed to pay prevailing wages in connection with the construction of the Project. City shall reasonably cooperate with Developer regarding any action by Developer hereunder challenging any determination that the Project is subject to the payment of prevailing wages. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without Developer ’s consent as to the City ’s liabilities or rights only, but should it do so, City shall waive the indemnification herein provided such waiver occurs prior to the issuance of any judgment in the matter.
5.9 Fees, Taxes, and Assessments.
a. Processing Fees. The Developer shall pay all processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Project Development Approvals , including but not limited to, City Attorney fees incurred by City for the review, preparation and negotiation of the Entitlements, inclusive of this Agreement, and for monitoring compliance with any Project Development Approvals granted or issued, in accordance with the Reimbursement and Indemnification Agreement entered into by and between the Parties effective April 13, 2023 (“Reimbursement Agreement”), and as the same may be amended from time to time by mutual agreement of the Parties. 01007.0005 962849.20 21
b. Permit Fees. Except as expressly provided in this Agreement, Developer shall pay all standard permit fees and other fees and charges which are standard and uniformly-applied to similar projects in the City. c. General Charges . Nothing herein shall prohibit the application of the following, if lawfully imposed upon the Property, excluding the Citywide CFD special taxes:
(i) Additional Taxes, Fee, and Charges. Developer, or Developer ’s Project occupants, shall pay all normal and customary taxes, fees, and charges applicable to all permits necessary for the Project, and any taxes, fees, and charges hereafter imposed by City , which are standard and uniformly-applied to similar properties in the City. (ii) Developer, or Developer ’s Project occupants, shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis such as business license fees or taxes, sales or use taxes, transient occupancy taxes, utility taxes, and public safety taxes; (iii) Developer, or Developer’s Project occupants, shall be obligated to pay any existing or future fees or assessments imposed on an area - wide basis (such as landscape and lighting assessments and community services asse ssments other than Citywide CFD special taxes);
(iv) Developer, or Developer’s Project occupants, shall be obligated to pay any fees imposed pursuant to any Uniform Code.
(v) Developer, or Developer’s Project occupants, shall be obligated to pay any utility fees and charges, including amended rates thereof, for City services such as electrical utility charges, water rates, and sewer rates.
5.10 Inconsistencies. It is expressly agreed that in the event of any clear and explicit conflict between the provisions or conditions of the Existing Land Use Regulations, this Agreement, and the Project Development Approvals, then the provisions or conditions of the following shall prevail in this order : (a) this Agreement; (b) Project Development Approvals, except that any more restrictive Conditions of Approval shall prevail over any conflicting provisions of this Agreement; (c) Existing Land Use Regulations that are subject to Developer’s Vested Right.
6. ANNUAL REVIEW.
6.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, at least once during every twelve (12) month period of the Term, City shall review the good faith compliance of Developer with the terms of this Agreement ( “Annual Review”). No failure on the part of City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement, nor shall it be deemed a breach on the part of City or 01007.0005 962849.20 22
Developer. The cost of the Annual Review shall be borne by Developer and Developer shall pay the actual and reasonable costs incurred by the City for such review.
6.2 Special Review. The City Council may, in its sole and absolute discretion, order a special review of compliance with this Agreement at any time at City ’s sole cost (“Special Review”). Developer shall cooperate with the City in the conduct of such Special Reviews.
6.3 Standards for Annual Review. During the Annual Review, Developer shall demonstrate good faith compliance with the terms of this Agreement. “Good faith compliance” shall be established if Developer is in substantial compliance with the material terms and conditions of this Agreement.
6.4 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with the Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. The procedure for an Annual Review or Special Review shall be as follows:
a. As part of either an Annual Review or Special Review, within ten (10) days of a request for information by the City, the Developer shall deliver to the City all information and supporting documents r easonably requested by City (i) regarding the Developer ’s performance under this Agreement demonstrating that the Developer has complied in good faith with the terms of this Agreement, and (ii) as required by the Existing Land Use Regulations.
b. The City Manager, or his/her designee, shall prepare and submit to Developer a written report on the performance of this Agreement and identify any perceived deficiencies in Developer ’s performance of this Agreement. The Developer may submit written responses to the report and Developer’s written response shall be included in the City Manager ’s report. If the City Manager determines that the Developer has substantially complied with the terms and conditions of this Agreement, the Annual or Special Review shall be concluded.
c. If any deficiencies are noted, or if requested by a Councilmember, a public hearing shall be held before the City Council at which the Council will review the City Manager’s report. The report to Council shall be made at a regularly-scheduled City Council meeting occurring as soon as possible, subject to the requirements of the Brown Act, after the commencement of the Annual or Special Review process outlined in this Section 6.4. If the City Council finds and determines, based on substantial evidence, that the Developer has not substantially complied with the terms and conditions of this Agreement for the period under review, the City may declare a default by the Developer in accordance with Article 7.
d. Neither party hereto shall be deemed in breach if the reason for non - compliance is due to a “force majeure” as defined in, and subject to the provisions of, Section 13.11.
01007.0005 962849.20 23
6.5 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review or a Special Review, Developer is found to be in compliance with this Agreement, City shall, upon written request by Developer, issue a Certificate of Agreement Compliance (“Certificate”) to Developer stating that after the most recent Annual Review or Special Review and based upon the information known or made known to the City Manager, Planning Commission, and City Council that (i) this Agreement remains in effect and (ii) Developer is in compliance. The Certificate, whether issued after an Annual Review or Special Review, shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer shall at its cost record the Certificate with the County Recorder. Additionally, Developer may at any time request from the City a Certificate stating, in addition to the foregoing, which obligations under this Agreement have been fully satisfied with respect to the Property, or any lot or parcel within the Property.
6.6 Review Process Not a Prerequisite to Declaring a Default . Neither the Annual Review nor Special Review procedure is a prerequisite to either party declaring a default and initiating the default and cure procedure in Article 7. In other words, either party may declare a default at any time without first undertaking the Annual Review or Special Review process.
6.7 Public Hearings. The public hearing prescribed by Section 6.4 is independent of, and in addition to, any further hearing procedures relating to defaults and remedies prescribed in Article 7 below. Thus, if the City Council finds that the Developer has not substantially complied with the terms and conditions of this Agreement as part of a review process pursuant to Section 6.4 and determines to declare a default, the City Council is still required to follow the notice/cure process (Section 7.2) and the ter mination hearing process (Section 7.4) before terminating this Agreement.
7. DEFAULTS AND REMEDIES.
7.1 Remedies. Developer shall not bring an action against City nor obtain any judgment for damages for a regulatory taking, inverse condemnation, unreasonable exactions, reduction in value of property, delay in undertaking any action, or asserting any other liability for any matter or for any cause which existed or which the Developer knew of or should have known of prior to the time of entering into this Agreement. Neither Party hereto shall be liable, whether in contract, tort or otherwise, for payment of any special, indirect, punitive, incidental, consequential, or exemplary damages arising out of this Agreement, including but not limited to loss of business opportunity or profit, loss of use, loss of goodwill or business stoppage, even if a Party knew o r should have known of the possibility of such damages, except nothing in this sentence shall be construed to limit or curtail in any way Developer’s obligations pursuant to Articles 8 or 9 of this Agreement. Developer acknowledges its remedies are adequate to protect Developer’s interest hereunder and the waiver made herein is made in consideration of the obligations assumed by the City hereunder.
7.2 Declaration of Default & Opportunity to Cure.
a. Rights of Non-Defaulting Party after Default. The parties acknowledge that both parties shall have hereunder all legal and equitable remedies as provided by law following the occurrence of a default or to enforce any covenant or agreement herein except as provided in Section 7.1. Before this Agreement may be terminated or action may be taken to obtain judicial 01007.0005 962849.20 24
relief the party seeking relief (“Non-Defaulting Party”) shall comply with the notice and cure provisions of this Section 7.2.
b. Notice and Opportunity to Cure. A Non-Defaulting Party in its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of the other party (“Defaulting Party ”) to perform any material duty or obligation of the Defaulting Party under the terms of this Agreement. However, the Non- Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party to cure such breach or failure (the “ Default Notice”).
The Defaulting Party shall be deemed in Default under this Agreement, if the breach or failure can be cured, but the Defaulting Party has failed to take such actions and cure such default within thirty (30) days after the date of such notice or ten (10) days for monetary defaults (or such lesser time as may be specifically provided in this Agreement). However, if such non- monetary Default cannot be cured within such thirty (30) day period, and if and, as long as the Defaulting Party does each of the following:
(i) Notifies the Non -Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period;
(ii) Notifies the Non -Defaulting Party of the Defaulting Party’ s proposed cause of action to cure the default;
(iii) Promptly commences to cure the default within the thirty (30) day period;
(iv) Makes periodic reports to the Non- Defaulting Party as to the progress of the program of cure; and
(v) Diligently prosecutes such cure to completion.
Then the Defaulting Party shall not be deemed in breach of this Agreement.
7.3 Termination Notice. Upon receiving a Default Notice, should the Defaulting Party fail to timely cure any default, or fail to diligently pursue such cure as prescribed above, the Non- Defaulting Party may seek termination of this Agreement, in which case the Non- defaulting Party shall provide the Defaulting Party with a written notice of intent to terminate this Agreement ( “Termination Notice ”). The Termination Notice shall state that the Non - defaulting Party will elect to terminate this Agreement within th irty (30) days and state the reasons therefor (including a copy of any specific charges of default or a copy of the Default Notice) and a description of the evidence upon which the decision to terminate is based. Once the Termination Notice has been issued, the Non -Defaulting Party’s election to terminate this Agreement will only be rescinded if so determined by the City Council pursuant to Section 7.4.
7.4 Hearing Opportunity Prior to Termination. If Developer is the Defaulting Party pursuant to Section 7.3, then the City’s Termination Notice to Developer shall additionally 01007.0005 962849.20 25
specify that Developer has the right to a hearing prior to the City’ s termination of any Agreements (“Termination Hearing”). The Termination Hearing shall be scheduled as an open public hearing item at a regularly-scheduled City Council meeting within thirty (30) days of the Termination Notice, subject to any legal requirements including but not limited to the Ralph M.
Brown Act, Government Code Sections 54950-54963. At said Termination Hearing, Developer shall have the right to present evidence to demons trate that it is not in default and to rebut any evidence presented in favor of termination. Based upon substantial evidence presented at the Termination Hearing, the Council may, by adopted resolution, act as follows:
a. Decide to terminate this Agreement; or
b. Determine that Developer is innocent of a default and, accordingly, dismiss the Termination Notice and any charges of default; or
c. Impose conditions on a finding of default and a time for cure, such that Developer’s fulfillment of said conditions will waive or cure any default.
Findings of a default or a conditional default must be based upon substantial evidence supporting the following two findings: (i) that a default in fact occurred and has continued to exist without timely cure, and (ii) that such default has caused or will cause a material breach of this Agreement and/or a substantial negative impact upon public health, safety and welfare, the environment, or such other interests that the City and public may have in the Project.
7.5 Rights and Duties Following Termination. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to (i) any obligations to have been performed prior to said termination, (ii) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, or (iii) the indemnification provisions of Article 8. Termination of this Agreement shall not affect either party ’s rights or obligations with respect to any Development Approval granted prior to such termination.
7.6 Waiver of Breach . By not challenging any Development Approval within ninety (90) days of the action of City enacting the same, Developer shall be deemed to have waived any claim that any condition of approval is improper or that the action, as approved, constitutes a breach of the provisions of this Agreement.
7.7 Interest on Monetary Default. In the event Developer fails to perform any monetary obligation under this Agreement, Developer shall pay interest thereon at the rate of six and one-half percent (6.5%) per annum from and after the due date of said monetary obligation until payment is actually received by City.
8. THIRD PARTY LITIGATION.
8.1 Indemnity Obligations on Third-Party Claims
a. Developer hereby agrees to indemnify, defend, and hold City, its officers, agents, employees, members of its City Council and any commission, partners and representatives (" City Indemnitees") harmless from any and 01007.0005 962849.20 26
all claims, actions, suits, damages, liabilities, and any other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature) (collectively, " Claims"), asserted against City or City Indemnitees arising out of or in connection with this Agreement, including, without limitation, (i) City's approval of this Agreement as provided in Section 1.1 and all documents related to any of the Project Development Approvals, Conditions of Approval, permits, or other entitlements for the Project and issues related thereto (including, City’s determinations regarding CEQA compliance and/or any other development incentives granted to the Project), (ii) the development or operation of the Project, and (iii) liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from, or are attributable to, Developer's (or Developer’s contractors, subcontractors, agents, employees or other persons acting on Developer's behalf (" Developer's Representatives ")) performance of its obligations under this Agreement and/or the negligence or misconduct of Developer or of Developer’s Representatives which relate to the Project or the Property. b. The City shall provide the Developer with notice of the pendency of such Claims within ten (10) days of being served or otherwise notified of such Claims and shall request that the Developer defend such action. The Developer may utilize the City Attorney’s office or use legal counsel of its choosing, but shall reimburse the City for any necessary legal cost incurred by City. In all cases, City shall have the right to utilize the City Attorney’s office in any legal action. The Developer shall provide a de posit in the amount of 100% of the City’ s estimate, in its sole and absolute discretion, of the cost of litigation, including the cost of any award of attorney’ s fees, upon receipt of an itemized invoice /statement from the City showing such estimate. If the Developer fails to provide the deposit, and after compliance with the provisions of this Section 8.1, the City may abandon the action and the Developer shall pay all costs resulting therefrom and City shall have no liability to the Developer. The Developer’s obligation to pay the cost of the action, including judgment, shall extend until judgment. After judgment in a trial court, the parties must mutually agree as to whether any appeal will be taken or defended. City agrees that it shall fully cooperate with the Developer in the defense of any matter in which the Developer is defending and/or holding the City harmless.
8.2 Hold Harmless: Developer’ s Construction, and Other Activities. The Developer shall defend, save and hold the City and its elected and appointed boards, commissions, officers, agents, and employees harmless from any and all claims, costs (including attorneys’ fees) and liability for any damages, personal injury or death, which may arise, directly or indirectly, from the Developer ’s or the Developer ’s agents, contractors, subcontractors, agents, or employees ’ Project construction activities and operations under this Agreement, whether such Project construction activities and operations be by the Developer or by any of the Developer’s agents, contractors or subcontractors or by any one or more persons directly or indirectly employed by or acting as agent for the Developer or any of the Developer ’s agents, contractors or subcontractors. Nothing herein shall be construed to mean that the Developer shall 01007.0005 962849.20 27
hold the City harmless and/or defend it from any claims arising from, or alleged to arise from, the sole negligence or gross or willful misconduct of the City’ s officers, employees, agents, contractors or subcontractors.
8.3 Loss and Damage. City shall not be liable for any damage to property of Developer or of others located on the Property, nor for the loss of or damage to any property of Developer or of others by theft or otherwise. City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Property or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or haz ard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever nature. Nothing herein shall be construed to mean that the Developer shall bear liability for the sole negligence or gross or willful misconduct of the City’ s officers, employees, agents, contractors of subcontractors.
8.4 Non-liability of City Officers and Employees. No official, agent, contractor, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or to its successor, or for breach of any obligation of the terms of this Agreement.
8.5 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects the financial interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any state statute or regulation.
8.6 Survival of Indemnity Obligations. All indemnity provisions set forth in this Agreement shall survive expiration or sooner termination of this Agreement for any reason other than a default by City.
8.7 If a Claim covered by this Article 8 also constitutes a “Claim or Liability” for which Developer is obligated to indemnify, defend and hold harmless the City pursuant to Article 9 of the Reimbursement Agreement, then the provisions of this Article 8 shall supersede and prevail over said Reimbursement Agreement provisions to the extent of any conflict re lated to the required procedures for defense or indemnification of the Claim.
9. INSURANCE.
9.1 Types of Insurance.
a. General Liability Insurance . Prior to commencement and until completion of construction of improvements by Developer on the Property, Developer shall, at its sole cost and expense, keep or cause to be kept in force, for the mutual benefit of City and Developer, commercial general liability insurance against claims and liability for bodily injury or death arising from the use, occupancy, disuse or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property or for property damage. Such policy shall provide protection of at least $5,000,000 per occurrence, and at least $ 5,000,000 for Products and 01007.0005 962849.20 28
Completed Operations , and $10,000,000 in the general aggregate and Products and Completed Operations Aggregate. Limits can be attained with the purchase of an excess/umbrella policy.
b. Worker’s Compensation. To the extent Developer and its contractors utilize employees for any portion of the Project , Developer and such contractors shall also furnish or cause to be furnished to City evidence reasonably satisfactory to it that Developer and any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries workers ’ compensation insurance as required by law.
c. Automobile Liability Insurance. Developer shall ensure that all contractors with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder maintains automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Developer arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non- owned or rented vehicles, in an amount not less than $5,000,000 combined single limit for each accident. Limits can be attained with a combination of primary policy and excess/umbrella.
d. Pollution Liability Insurance. Environmental Impairment Liability Insurance shall be written on a Pollution Liability form or other form acceptable to City’s Risk Manager providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $ 5,000,000 dollars per claim and $5,000,000 in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “ covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites. e. Builder’s Risk Insurance. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions or provisional limit provisions. The policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the bui ldings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the project; (4) ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub- limits sufficient to insure the full replacement value of any key equipment item; (6) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the project site or 01007.0005 962849.20 29
any staging area. The City and Developer shall each be included as Loss Payee for their respective insurable interest.
f. Marine Insurance. The insurance shall cover physical loss or damage to the materials, equipment, machinery, supplies and other items for incorporation or consumption in the Project occurring during transportation thereof to the Property or its vicinity, from warehouse to warehouse. Up to $40,000,000 each and every loss any one conveyance and/or interim storage location as per “storage” extension within the policy. From the commencement date of the first shipment of property to the Site until the completion of all shipments of property to the Site, including materials, equipment, machinery, spares, supplies and other items for the Plant and the Interfaces.
g. Commercial General and Professional Liability Insurance ; Contractors. Developer represents and warrants it will contract out all Project design work. Developer further represents and warrants that all of its contractors and consultants are and will continue to be, until completion of their respective work/services and for such period thereafter as may be reasonably required by the City’s Risk Manager, insured through their own Commercial General and Professional liability insurance policies appropriate to the relevant profession for all Project design work, with limits no less than (i) $2,000,000 per claim and in the aggregate for Professional liability, and (ii) $1,000,000 each occurrence (combined single limit for bodily injury and property damage) and $2,000,000 general aggregate for Commercial General liability . This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The insurance required by this Agreement shall be applicable to claims based upon, arising out of or related to services performed under this Agreement. h. Other Insurance. Developer may procure and maintain any insurance not required by this Agreement, but all such insurance shall be subject to all of the provisions hereof pertaining to insurance and shall be for the benefit of City and Developer.
i. Contractors/Subcontractors. Developer shall ensure that all contractors and sub-contractors maintain the required minimum insurance coverages, or shall include the contractors and subcontractors under its insurance .
Notwithstanding the foregoing, the City’s Risk Manager may waive Professional Liability or Pollution Liability insurance requirements for a given subcontractor if the Risk Manager determines the subcontractor’s scope of work does not necessitate such insurance requirements.
9.2 Insurance Policy Form, Sufficiency, Content, and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed and admitted to do business by California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VIII or better, unless waived by City. All such policies shall be non - 01007.0005 962849.20 30
assessable and shall contain language, to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence of City or Developer that might otherwise result in the forfeiture of the insurance, (ii) the insurer wa ives the right of subrogation against City and against City ’s agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried by City; and (iv) the policies cannot be canceled except after thirty (30) days’ written notice by the insurer to City or City ’s designated representative. Developer shall furnish City with copies of all such policies promptly on receipt of them or with certificates evidencing the insurance. City shall be named as an additional insured on all policies of insurance required to be procured by the terms of this Agreement , except Workers’ Compensation and Professional Liability, and except for all insurance required by Developer’s contractors, both City and Developer shall be named as an additional insured.
Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. In the event the City ’s Risk Manager determines that the use, activities or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property under this Agreement creates an increased or decreased risk of loss to the City, Developer agrees that the minimum limits of the insurance policies required by Section 9.1 may be changed accordingly upon receipt of written notice from the City’s Risk Manager; provided that Developer shall have the right to appeal a determination of increased coverage to the City Council of City within ten (10) days of receipt of notice from the City’s Risk Manager.
9.3 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to City, in the manner required for notices, copies of certificates of all insurance policies together with endorsements required hereunder together with evidence satisfactory to City of payment required for procurement and maintena nce of each policy within the following time limits:
a. For insurance required above, within ninety (90) days after the Effective Date.
b. For any renewal or replacement of a policy already in existence, at least ten (10) days before the expiration or termination of the existing policy. c. If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish City with required proof that that insurance has been procured and is in force and paid for, such failure or refusal shall be a default hereunder.
9.4 Waiver of Subrogation. Developer agrees that it shall not make any claim against, or seek to recover from City or its agents, servants, or employees, for any loss or damage to Developer or to any person or property, except as specifically provided hereunder and Developer shall give notice to any insurance carrier of the foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to recovery against City, its agents and employees.
9.5 Broader Coverages and Higher Limits. Notwithstanding anything else herein to the contrary, if Developer maintains broader coverages and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverages and/or higher limits maintained by Developer.
01007.0005 962849.20 31
10. MORTGAGEE PROTECTION.
10.1 The parties agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer ’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed, of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require ce rtain Agreement interpretations, modifications, and estoppel certificates and City agrees upon request, from time to time, to communicate and meet with Developer and representatives of such lenders to negotiate in good faith any such estoppel certificates and/or requests for interpretation or modification. Subject to compliance with applicable laws, City will not unreasonably withhold its consent to any such requested estoppel certificate, interpretation or modification provided City determines such estoppel certificate, interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Pr operty shall be entitled to the rights and privileges set forth in this Article
10. 10.2 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
10.3 The Mortgagee of any Mortgage or deed of trust encumbering the Property, or any part thereof, where Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer’s obligations under this Agreement.
10.4 If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Developer.
The Mortgagee shall have the right, but not the obligation, to cure the default during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days.
10.5 Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the Mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
11. ASSIGNMENTS.
11.1 The experience, knowledge, capability and reputation of Developer, its principals, employees and affiliates were a substantial inducement for the City to enter into this Agreement. The Developer may sell, transfer, lease or assign this Agreement , the Property, or any part thereof (such sale, transfer, lease or assignment shall be referred to as an “Assignment”) with the prior written consent of the Director , which consent may not be unreasonably withheld, after providing reasonable documentation and evidence demonstrating that the person or entity to whom any of the rights or privileges granted herein are to be sold, transferred, leased, assigned, hypothecated, encumbered, merged, or consolidated, meets the following criteria: (i) the transferee has the financial strength and capability to perform its obligations under the Agreement, and (ii) reasonably satisfactory evidence that the transferee has the experience and expertise to operate the Project, including 01007.0005 962849.20 32
reasonably satisfactory evidence that the transferee has experience with operations and projects with a similar scale of this Project. The proposed transferee shall execute and deliver to the City an assumption agreement assuming Developer ’s Project obligations, which assumption agreement shall be in a form approved by the City Manager and City Attorney.
Notwithstanding the foregoing, if Developer should seek the Assignment prior to making the payments to City pursuant to Sections 3.1, 3.2 or 3.3, then Developer must make such payments to City prior to completion of the Assignment . Developer making these payments will be a condition precedent to the Director providing consent to the Assignment.
11.2 City Consideration of Requested Assignment. The City agrees that it will not unreasonably withhold, condition, or delay approval of a request for approval of an Assignment required pursuant to this Article 11, provided that:
a. Developer delivers written notice to the City requesting that approval prior to the completion of the Assignment (the “Consent Request”); and b. The Assignment is not completed until either (i) City has provided its written consent or (ii) sixty (60) days have passed after delivery by Developer to City of the Consent Request without the City having rejected the Consent Request in writing.
c. The Consent Request shall be accompanied by (i) a proposed draft of the Assignment and Assumption Agreement described in Section 11.3, in a form reasonably acceptable to the City Attorney and City Manager, and (ii) evidence regarding the proposed assignee’s development and/or operational qualifications and experience and its financial commitments and resources in sufficient detail to enable the City to evaluate the proposed assignee ’s ability to complete the Project.
11.3 Assignments Permitted Without City’s Consent. Notwithstanding any other provision of this Agreement, Assignments related to the following property conveyances and other transactions shall not require City consent:
a. The granting of easements or permits to facilitate construction of the Project or any public improvements.
b. The granting of easements or permits for utility purposes. c. Transactions for financing purposes, including the grant of a deed of trust to secure the funds necessary, but not to exceed the amounts reasonably required, for land acquisition, construction, and/or permanent financing of any portion of the Project.
d. The acquisition of some or all of the Property by a Mortgagee in its capacity as a Mortgagee, such as through foreclosure or a deed in lieu of foreclosure. e. A sale or transfer resulting from, or in connection with, a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or otherwise, in which the ownership interests of a corporation are 01007.0005 962849.20 33
assigned directly or by operation of law to a person or persons, firm or corporation which acquires the control of the voting capital stock of such corporation or all or substantially all of the assets of such corporation. f. A sale or transfer between members of the same family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries consist primarily of family members of the trustor, or transfers to a corporation or partnership in which the family members or shareholders of the transferor own at least ten percent (10%) of the present equity ownership and/or at least fifty percent (50%) of the voting control of Developer.
g. If Developer is a trust, corporation, real estate investment trust, or partnership, a transfer of stock or other interests, provided there is no material change in the actual management and control of Developer. h. Transactions with any member, partner, officer, employee, or affiliate of Developer or any trust or family member, provided that, following the transaction, the management of Developer on the Effective Date shall, subject to normal and customary business practices and personnel changes, remain the primary Developer representative(s) for purposes of communication with the City.
11.4 Effect of Assignment. Unless otherwise stated within the Assignment, upon an Assignment:
a. The assignee shall be liable for the performance of all remaining obligations of Developer with respect to those portions of the Property which are transferred (the “Transferred Property ”), but shall have no obligations with respect to any portions of the Property not conveyed (the “ Retained Property”).
b. The owner of the Retained Property shall be liable for the performance of all obligations of Developer with respect to the Retained Property, but shall have no further obligations with respect to the Transferred Property. c. The Assignee’s exercise, use, and enjoyment of the Transferred Property shall be subject to the terms of this Agreement to the same extent as if the Assignee were the Developer.
12. AMENDMENT AND MODIFICATION.
12.1 Initiation of Amendment. Either Party may propose an amendment to this Agreement or the Project Development Approvals.
12.2 Procedure and Requirements for Amendments to Development Agreement. The procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance as set forth in Government Code Section 65867 and 65868. City will process any amendment to this Agreement consistent with state law and will hold public hearings thereon if so required by state 01007.0005 962849.20 34
law, and the Parties expressly agree nothing herein is intended to deprive any party or person of due process of law. Except as expressly set forth in any such amendment, an amendment to this Agreement will not alter, affect, impair, modify, waive, or othe rwise impact any other rights, duties, or obligations of either party under this Agreement.
12.3 Consent. Except as expressly provided in this Agreement, no cancellation of or amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the parties hereto and recorded in the Official Records of Los Angeles County.
12.4 Administrative Minor Project Modifications. Notwithstanding any other provision and/or Condition of Approval contained in any Project Development Approvals, minor modifications to the Project Development Approvals, the Subsequent Development Approvals, and/or the Development Plan shall be made ministerially, with the approval of the Director. The determination of whether a requested or proposed modification constitutes a minor modification shall be made by the Director in his or her sole discretion, except that minor modifications shall not include any modifications that the Director determines extend beyond the intent of the original approval, and modifications meeting any of the following criteria shall not be deemed to constitute minor modifications: (i) modifications that change the proposed uses analyzed in the CatEx Memo; (ii) modifications that increase the total amount of battery enclosure square footage within the Project by more than ten percent (10%); (iii) modifications that increase building/structure heights within the Property in comparison to what was identified on the Development Plan; (iv) modifications that substantially deviate from the design, location or specifications of the fiber optic cable lines as set forth in the Development Plan or Exhibit “C”; or (v) other modifications that involve any deviation of architectural design or details that is not in substantial conformance with the Project Development Approvals.
13. MISCELLANEOUS PROVISIONS.
13.1 Recordation. The City Clerk shall cause a copy of this Agreement to be recorded against the Property with the County Recorder within ten (10) calendar days after the Execution Date. The failure of the City to sign and/or record this Agreement shall not affect the validity of this Agreement.
13.2 Notices. Notices and correspondence required or permitted by this Agreement shall be in writing and either personally delivered or sent by registered, certified, or overnight mail or delivery service , or email (for attorney copies if specified below) . Notices shall be deemed received upon personal delivery or on the second business day after registered, certified, or overnight mailing or delivery, or email if such email notice is acknowledged as received by the receiving party. Notices shall be addressed as follows:
To City: City of Carson
701 East Carson Street
Carson, California 90745
Attn: Planning Manager
With copy to: Aleshire & Wynder
1 Park Plaza, Suite 1000
Irvine, CA 92614
01007.0005 962849.20 35
Fax: 949-223-1180
Attn: Sunny Soltani
To Developer: VESI 27 LLC
6884 Sierra Center Parkway
Reno, NV 89511
With copy to: Legal Department
[email protected]
A Party may change its address by giving written notice to the other Party. Thereafter, Notices shall be addressed and transmitted to the new address.
13.3 Estoppel Certificates. Either Party (or a Mortgagee) may at any time deliver written notice to the other Party requesting an Estoppel Certificate stating:
a. The Agreement is in full force and effect and is a binding obligation of the Parties;
b. The Agreement has not been amended or modified or, if so amended, identifying the amendments; and
c. There are no existing defaults under the Agreement to the actual knowledge of the Party signing the Estoppel Certificate.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by assignees and Mortgagees.
13.4 Project as a Private Undertaking. It is specifically understood and agreed by the Parties that the Project is a private development, that neither Party is acting as the agent of the other in any respect, and that each Party is an independent contracting entity with respect to this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of property owned by a private party. City agrees that by its approval of, and entering into, this Agreement that it is not taking any action which would transform this private Development into a “ public work” project, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer’s private project into a public work project, it being understood that this Agreement is entered into by City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, and that City is receiving by and through this Agreement t he full measure of benefit in exchange for the burdens placed on Developer by this Agreement, including but not limited to Developer’s obligation to provide the public improvements set forth herein.
13.5 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain. 01007.0005 962849.20 36
13.6 Survival. Without limitation as to Section 8.6 and any other provision where the context so indicates, the provisions set forth in Sections 3.2, 3.5, 3.7, 3.8, 3.13, 3.14, 3.16 and 3.17 of this Agreement shall survive expiration or sooner termination of this Agreement for any reason other than a default by City.
13.7 Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter of this Agreement. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
13.8 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement.
13.9 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.
13.10 Covenant Not To Sue. The parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other party to this Agreement, in law or in equity, or based on any allegation or assertion in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable.
13.11 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes, and other labor difficulties beyond the Party’s control, government regulations, pandemics, government-ordered quarantine, court actions (such as restraining orders or injunctions), or other causes beyond the Party’s reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of the impacts on the Project of each such event.
13.12 Waiver. All waivers of performance must be in a writing signed by the Party granting the waiver. Failure by a Party to insist upon the strict performance of any provision of this Agreement shall not be a waiver of future performance of the same or any other provision of this Agreement.
13.13 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
13.14 Governing Law and Venue. This Agreement shall be governed and interpreted in accordance with California law, with venue for any litigation concerning this Agreement in Los Angeles, California.
01007.0005 962849.20 37
13.15 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party or in favor of City shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
13.16 Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) 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 this Agreement does not violate any provision of any other agreement to which such party is bound.
13.17 Attorneys’ Fees. If either party to this Agreement is required to initiate or defend litigation against the other party, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and, in addition, a party entitled to attorney’ s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to a final judgment.
13.18 Recitals. The recitals in this Agreement constitute part of this Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Agreement.
13.19 No Brokers. City and Developer represent and warrant to the other that neither has employed any broker and/or finder to represent its interest in this transaction. Each party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorney’ s fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder’s fee in connection with this Agreement arising out of ag reements by the indemnifying party to pay any commission or finder’s fee.
13.20 Joint and Several Liability. In the event Developer should sell, transfer, lease or assign this Agreement, the Property, or any part thereof, Developer shall bear ultimate responsibility for all obligations, conditions, and restrictions set forth under this Agreement, it being understood that both Developer and any transferee, assignee, or lessee shall be jointly and severally liable.
13.21 Compliance with Laws. Developer must comply with all federal, state and local laws and regulations, including the City’s Municipal Code.
13.22 Warranty & Representation of Non -Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial in terest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, 01007.0005 962849.20 38
partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests f ound to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Developer warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, offic er, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Developer further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agree ment. Developer is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
13.23 Counterparts. This Agreement may be executed by the Parties in counterparts, which together shall have the same effect as if each of the Parties had executed the same instrument.
[SIGNATURES ON FOLLOWING PAGE(S)]
01007.0005 962849.20 39
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first set forth above.
CITY
CITY OF CARSON a municipal corporation
Lula Davis-Holmes, Mayor
ATTEST
Dr. Khaleah K. Bradshaw, City Clerk
APPROVED AS TO FORM
ALESHIRE & WYNDER, LLP
Sunny K. Soltani, City Attorney
[brj]
DEVELOPER
VESI 27 LLC, a Delaware limited liability
company
By:
Name:
Title:
By:
Name:
Title:
DEVELOPER SHALL PROVIDE CITY WITH COPIES OF APPROPRIATE DOCUMENTS EVIDENCING AUTHORITY OF SIGNATORIES TO EXECUTE AND BIND DEVELOPER. DEVELOPER’S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER’S BUSINESS ENTITY.
01007.0005 962849.20 40
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2026, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same i n his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 01007.0005 962849.20 41
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2026, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same i n his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01007.0005 962849.20 A-1
EXHIBIT “A”
PROPERTY LEGAL DESCRIPTION
The land referred to herein below is situated in the City of Carson in the County of Los Angeles, State of California, and is described as follows:
The westerly 750.97 feet of Lot 119 of Tract 4671, in the City of Carson, County of Los Angeles, State of California, as per map recorded in Book 56, Pages 30 and 31 of Maps, in the office of the County Recorder of said County.
Except therefrom the westerly 222.97 feet thereof.
Also except therefrom the easterly 100 feet of the westerly 322.97 feet as per final judgment, Case No 274,177 recorded in Book 12339, Page 97 of official records in said County.
APN: 7339-014-009
01007.0005 962849.20 B-1
EXHIBIT “B”
DEPICTION OF THE PROPERTY
01007.0005 962849.20 B-2
01007.0005 962849.20 B-3
EXHIBIT “C”
FIBER OPTIC CABLE LINE ROUTES
01007.0005 962849.20
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Carson
701 E Carson Street
Carson, CA 90745
Attn: Planning Manager
SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE
DEVELOPMENT AGREEMENT NO. 33-23
This Development Agreement ( “Agreement”) is entered into on the ____ day of ___________, 2026 (“Execution Date”), by and between the City of Carson, a charter city in the State of California ( “City”), and VESI 27 LLC, a Delaware limited liability company (“Developer”). The City and Developer shall be referred to jointly within this Agreement as the “Parties” and individually as a “Party.”
RECITALS
A. The Development Agreement Statute. California Government Code Sections 65864 et seq. (“Development Agreement Law ”) authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private pa rticipation, and comprehensive planning and identifying the economic costs of such development.
B. Orderly Development; Public Benefits. The City Council finds that this Agreement is in the best public interest of the City and its residents, adopting this Agreement constitutes a present exercise of the City’s police power, and this Agreement is consistent with the City’s General Plan. This Agreement and the proposed Project will achieve a number of City objectives, including the orderly development of the Property and the provision of public benefits, or funds therefor, to the City and its residents.
C. The Property. The 3.00-acre property is currently vacant and is surrounded by other mixed industrial uses, and is located at 18800 South Broadway Avenue in the City of Carson, County of Los Angeles, State of California (Assessor’s Parcel Number 7339-014-009), legally described in Exhibit “A” and depicted in Exhibit “B” attached hereto , which exhibits are incorporated herein (the “Property”). The General Plan land use designation for the Property is Heavy Industrial and the Property is zoned M H-D (Manufacturing Heavy – Design Overlay). The Southern California Edison ( “SCE”) Nola Substation is located directly adjacent to the east of the Property, in the City of Carson.
D. The Project. Developer will demolish the existing industrial/topsoil supplier facility and construct a utility-scale, 100-megawatt Battery Energy Storage System (BESS) and associated infrastructure. Lithium-ion batteries will be stored within modular outdoor enclosures, and power that is released or captured by the batteries will be transferred to and from the SCE Nola Substation via an underground 66-kilovolt generation transmission (“gen-tie”) line as further detailed below.
01007.0005 962849.20 2
The facility will provide a service by receiving energy (charging) from the SCE transmission system, storing the energy, and then later delivering energy (discharging) back to SCE Nola Substation. In general, the California Independent System Operator (“CAISO”) will dispatch the system to both place energy onto the grid (discharge) during times of high load and to take energy off the grid (charge) in times of low load relative to generation. However, SCE may have different requirements for when to dispatch the system, potentially dictated by the status of critical equipment that comprises the grid.
The project consists of (i) the batteries installed in racks located in prefabricated outdoor enclosures, each housing internal racks and system control modules, thermal management, and communication systems, (ii) inverters, (iii) medium-voltage transformers , (iv) switchgear, (v) a collector substation , and (vi) other associated equipment , as further detailed below. The battery modules will be delivered to the site preassembled and moved into place by forklifts or cranes. These modules will be connected in parallel to aggregate the required energy capacity.
More specifically, the project will include the following components: (i) an energy storage facility that w ill provide energy storage capacity and dispatch for the electric grid; (ii) a battery management system to control the charging/discharging of the batteries, along with temperature monitoring and control of the individual battery cell temperature with an integrated cooling system; (iii) power inverters to convert between AC and DC, along with transformers that w ill step up the voltage; (iv) telecommunication equipment, including underground and overhead fiber optics or Supervisory Control and Data Acquisition (“SCADA”); (v) on-site access driveways, perimeter security fencing, and nighttime directional lighting; (vi) a gen-tie line to transfer power between the SCE Nola Substation and the project, as detailed below.
The m edium-voltage transformers, inverters, switchgear, electronic switchboards, and additional electrical equipment will be installed outside the BESS enclosures. Underground wires and cabling w ill run from the battery enclosures to a concrete head, housing the inverters and medium -voltage transformers. All electrical equipment w ill be housed in appropriately rated National Electrical Manufacturers Association enclosures. All outside electrical cabling will run underground. Underground wires and cabling will run from the medium-voltage transformers to the collector substation. The collector substation w ill be located on the northeastern portion of the parcel on approximately 9,400 square feet (approximately 0.22 acre) of ground. Components will include a main power transformer, control house, and switchgear.
Industry-standard nationally (and internationally) recognized inverter equipment w ill be used for the project. The inverters w ill be stand -alone units that w ill operate in all conditions in a charge mode and discharge mode. The inverters w ill be controlled and monitored remotely, and on -site monitoring will also be provided as set forth in Section
3.8 below. On-site disconnects w ill be installed in case of an emergency or unscheduled maintenance. The inverters will be designed to last for no less than the full Term of this Agreement with proper preventive maintenance, schedule d maintenance, and occasional minor equipment overhauls.
01007.0005 962849.20 3
The project’s above-referenced telecommunication facilities will meet the communication requirements for interconnection and communication with the SCE/CAISO facilities and will support remote monitoring of project operations. To facilitate communication with SCE facilities, a fiber -optic cable will connect the project site switchyard with the SCE Nola Substation . Per utility interconnection regulations, a second, separate, redundant fiber-optic cable will be installed within the project site boundaries.
The project will use local exchange carrier services for telecommunication to support remote monitoring requirements. The project will connect to telecommunication fiber - optic lines owned and managed by local telecommunication providers.
The location of the project fiber optic cable lines (underground and overhead) will be substantially as shown in Exhibit “C.” Installation of the underground fiber optic cable lines will require trenching and earthmoving activities within the West Griffith Street public right-of-way and will be contingent upon City granting an easement o r license to SCE or Developer, as applicable, for the location of the fiber optic cable lines in the West Griffith Street public right-of-way in exchange for fair market value consideration pursuant to a written agreement, and all required City encroachment and excavation permits. Per the Conditions of Approval, no building permits shall issue for the project unless and until such easement or license agreement has been entered into.
The SCADA system, which uses (i) proprietary software, (ii) a fiber-optic transmission system, (iii) a telephone, radio, and/or microwave communication network, and (iv) other means of communication such as radio links and phase loop communication systems, will function as a remote start, stop, reset, and tag out for the facility, thus minimizing the labor and site diagnostic information generated from the panels. The SCA DA system will also control the substation, allowing for fully -centralized operation of the project to meet all CAISO and utility interconnection requirements.
The proposed gen-tie line will start at the northeast portion of the project site, run east along the West Griffith Street frontage, and connect to the SCE Nola Substation located approximately 165 feet east of the project site , on the SCE Nola Substation property .
Construction and installation of the gen -tie line w ill require trenching and earthmoving activities across West Griffith Street. SCE will construct, own, and operate the gen-tie line.
To the extent the gen -tie line will be located in the West Gri ffith Street public right -of- way, SCE’s construction and operation of the gen-tie line will be subject to SCE’s existing franchise agreement with the City (City Ordinance No. 20; the “Franchise Agreement”).
SCE will be also responsible for obtaining any and all required City and third party approvals and permits (including City encroachment and excavation permits , and easements from third parties as needed for areas outside the public right -of-way) for construction and operation of the gen -tie line . The fin al gen -tie line routing w ill be determined by SCE during its interconnection review process, subject to SCE obtaining all required permits and approvals and provided that if the final gen -tie line routing necessitates any modifications to this Agreement, the Project Development Approvals, the Subsequent Development Approvals and/or the Development Plan, such modifications shall be subject to processing and approval as provided in applicable provisions of this Agreement.
01007.0005 962849.20 4
The project site will be accessed from existing project site driveways off South Broadway.
A perimeter wall will be installed around the project site for safety and security purposes.
Security cameras will be placed on-site and monitored 7 days per week, 24 hours per day.
Permanent motion -sensitive, directional security lights w ill be installed to provide adequate illumination around the substation area and points of ingress and egress.
Additional lighting w ill provide operations and maintenance personnel with illumination for both normal and emergency conditions. Lighting on -site will be designed to provide the minimum illumination needed to achieve safety and security objectives. The lighting will be shielded and directed downward to minimize the potential for glare or spi llover onto adjacent properties.
Stormwater treatment areas will be constructed along the northern and western boundaries of the project site (along South Broadway and West Griffith Street) to collect and treat all stormwater generated on the project site prior to be ing discharged into the adjacent municipal stormwater system, as detailed in the Stormwater Plan approved as part of the Development Plan.
Landscaping will be installed on the project site in accordance with the approved landscaping plan as part of the Development Plan. Landscaping will be provided along the northern and western boundaries of the project site.
The design of the BESS facility will comply with the National Fire Protection Association (“NFPA”) 855 Code, which dictates specific fire access, protection, and suppression requirements to ensure the safe operation of the facility , and the applicable edition of the Los Angeles County Fire Code, as adopted by the City pursuant to Carson Municipal Code Section 3100, except as otherwise approved by the Los Angeles County Fire Department (“LACFD”) pursuant to a request for modifications or alternative materials and methods (“AMMR”) review. Additionally, the BESS will be Underwriters Laboratories Inc. (UL) certified and include built -in failsafe and cooling systems designed to prevent thermal runway (i.e., uncontrollable temperature increase) and the spread of fire. The site plan will be reviewed and approved by LACFD to ensure that the project meets applicable codes as referenced above, and any conditions of approval imposed or recommended by LACFD will be complied with . Without limitation of the foregoing, the project will comply with the LACFD AMMR Results Update issued on December 11, 2025, and as may be amended, for the subject project which is identified therein as EPIC -LA Plan Number FEPC2023-3504.
The physical construction/site activities of the project will last up to 10 months, not including commissioning. Construction activities will consist of : (1) demolition; (2) site preparation; (3) system installation; and (4) testing, commissioning, and cleanup. All existing structures within the project site w ill be demolished including a small building residing in the northwest portion of the site, and removal of several concrete soil bunkers scattered throughout the site. The on-site construction workforce will peak at several dozen individuals; however, the average daily workforce on-site during construction will be one to two dozen individuals, comprising construction, supervisory, support, and construction management personnel. Construction will be limited to the days/hours of Monday through Saturday between 7:00 a.m. and 7:00 p.m.
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Once developed, the project will be monitored by a remote management system at all times, and by on -site monitoring as provided in Section 3.8 below . Remote access to battery status, meters, schedules, and other telemetry data w ill be available to off -site personnel.
The facilities will operate year-round and will be available to receive or deliver energy 24 hours per day, 365 days per year.
Typical operations and maintenance activities that will occur on the project site will include on-site monitoring as provided in Section 3.8 below ; liaison and remote monitoring administration and reporting; semi -annual and annual services; remote operations of batteries, inverters, substation, and site security and management; additional communication protocols; and repair and maintenance of the BESS, electrical transmission lines, and other project facilities. The electrical equipment and security will be automated and monitored remotely, and by on-site monitoring as provided in Section 3.8 below. The project site will mostly be unoccupied other than on-site monitoring as provided in Section
3.8 below, but will be visited periodically for equipment inspections, monitoring (beyond the standard on-site monitoring as provided in Section 3.8 below ) and testing, and maintenance as needed. Periodically, batteries and various components will be replaced or renewed to ensure optimal performance. Replaced batteries and other hazardous waste will be disposed of in accordance with applicable state and federal laws and regulations. (this Recital collectively, the “Project”).
E. On April 13, 2023, Developer filed a development permit application with the City seeking Conditional Use Permit No. 11 28-23 (“the CUP”), Design Overlay Review No. 1 935-23 (“the DOR”) and Development Agreement No . 33-23 (the “DA”), along with a project description for applicable CEQA review (collectively, the “Development Application”).
F. City finds and determines that all actions required of City precedent to approval of this Agreement have been duly and regularly taken. In accordance with the requirements of the California Environmental Quality Act (Public Resources Code § 21000, et seq . (“CEQA”), appropriate studies, analyses, reports and documents were prepared and considered by the Planning Commission and the City Council. The Project is a CEQA “project,” and the City is the lead agency for review of the Project under CEQA. A Class 32 Categorical Exemption Memorandum was prepared and reviewed by the City as lead agency for the Project (the “ CatEx Memo ”). The CatEx Memo demonstrates that the Project is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15332, Class 32 (In -fill Development Projects), and no exception to the categorical exemption applies under CEQA Guidelines Section 15300.2 , and The City’s Planning Commission, after a duly noticed public hearing on __________ ___, 2026, recommended approval of a Categorical Exemption finding for the Project pursuant to CEQA Guidelines Section 15332 and a finding that the Project is not subject to CEQA pursuant to CEQA Guidelines Section 15061(b)(3)., based on a memorandum prepared by the City’s environmental consultant and independently reviewed by the City’s Planning Division staff and Planning Commission (the “ CatEx Memo ”). The CatEx Memo was prepared by the City’s environmental consultant and independently reviewed by the City.
G. On the same dayMar 10, 2026, the Planning Commission, after giving notice pursuant to Government Code §§ 65090, 65091, 65092 and 65094, held a public hearing on the
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Development A pplication for approval of this Agreement, the CUP, and the DOR (collectively the “Entitlements”), including the associated CEQA review., Following the hearing, on March 10, 2026, the Planning Commission and adopted Resolution No. ___ 26-2900 denying CUP No. 1128 -23 and DOR No. 1935 -23 and recommending that the City Council make the above-referenced City finding and approve the Entitlements (subject to the Project conditions of approval attached to said resolution)deny DA No. 33-23.
H. Developer timely appealed the Planning Commission’s decision to the City Council via an appeal application submitted on March 23, 2026, pursuant to Carson Municipal Code Section 9173.4 (the “Appeal”).
IG. On ______________ May 5, 2026, the City Council, after provi sion of the public notice required by law, held a public hearing to consider the Development ApplicationAppeal and the Planning Commission’s recommendation for approval of the Entitlementsdenial of DA No. 33-23. The City Council independently reviewed the proposed CEQA analysis and findings (including but not limited to the CatEx Memo) and the Project as a whole, and following the conclusion of the hearing on ________, 2026 , adopted introduced and conducted first reading of the Adopting Ordinance No. 26-___, approving this Agreement, and adopted Resolution No. 2 6-___, finding a Class 32 Categorical Exemption and a CEQA Guidelines Section 15061(b)(3) exemption from CEQA with respect to DOR No.
No. 1935-23 and CUP No. 1128-23 and approving DOR No. 1935-23 and CUP No. 1128- 23 subject to the Conditions of Approval, contingent upon adoption and effectiveness of the Adopting Ordinanceapproving the CUP and DOR subject to the Project conditions of approval attached to said Resolution . On _______ __, 2026, the City Co uncil conducted second reading and adopted the Adopting Ordinance. The Planning Commission and the City Council have found on the basis of substantial evidence based on the entire administrative record, that this Agreement is consistent with all applicable plans, rules, regulations and official policies of the City.
JH. Adoption of DIF Program. On April 16, 2019, the City Council adopted Ordinance No. 19- 1931 to implement the City’s Interim Development Impact Fee Program (“DIF Program”) to establish an interim Development Impact Fee (“ DIF”) schedule applicable to new development within the City. DIFs are valuable tools to fund infrastructure needs associated with new/additional development within the City pursuant to Government Code Sections 66000 et seq. DIFs serve the purpose of allowing the City to recover from ea ch new development project a reasonable and proportional share of the cost of public facilities and infrastructure improvements that serve or will benefit that development.
KI. Agreed-Upon Payment of DIF Amount. City staff and its rate consultants have analyzed the draft “Development Impact Fee Study” and currently -available fee study data, and potential impacts upon public facilities and infrastructure attributable to the Project , in order to accurately estimate the DIFs that would be applicable to the Project. Project DIF amounts in this Agreement were estimated by reviewing the individual Project and its direct relationship to the impacts created by the Project, and the fees collected, and it was determined that the amounts of the fees are rough ly proportional to the Project’s specific impacts. Based on such analyses, the parties hereto mutually agree that Project impacts warrant a one-time DIF payment of $189,093.12, calculated at $3.68 per square foot for all square footage of Project battery enclosures (51,384 square feet), which amount is to be
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paid on or prior to the date of the final inspection or the date the certificate of occupancy is issued for the Project , whichever occurs first, and is subject to adjustment as set forth in Section 3.1 below depending on the timing of payment . All payments for DIFs pursuant to this Agreement are hereinafter referred to as the “DIF Amount.” The parties agree that such DIF A mount is (1) directly related to the impacts of the Project, and (2) roughly proportional to the specific impacts upon public facilities and infrastructure attributable to the Project.
LJ. CFD Formation. On November 7, 2018, the City formed a Master CFD entitled City of Carson Community Facilities District No. 2018 -01 (Maintenance and Services) (the “Citywide CFD”). Developer is not and will not be required to annex the Property into the Citywide CFD or to pay the special taxes that are imposed on properties which are annexed into the Citywide CFD.
MK. Developer’s Interest in the Property . Developer has a current leasehold interest in the Property, with the lease term having begun on September 1, 2022, commencing with an Initial Term which ends on September 1, 2026, followed by an Operational Term, with a duration of up to 27 years (consisting of a 12-year Term, plus options for three (3) five (5) year Extension periods) and any amendments thereto extending the Lease Term. As such, Developer possesses the requisite legal or equitable interest in the Property under Government Code Section 65865 that allows the Parties to enter into this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. GENERAL DEFINITIONS.
In addition to those terms defined within the above Recitals and elsewhere within this Agreement, the following terms shall bear the meanings set forth below:
1.1 “Adopting Ordinance ” means Ordinance No. _______ approving this Agreement, introduced on ________, 2026, and adopted on ____________, 2026.
1.2 “Agreement” means this Development Agreement, including all of its exhibits.
1.3 “Annual Review” means the annual review of the Developer ’s performance under this Agreement in accordance with Article 6 of this Agreement.
1.4 “Applicable Laws” means, collectively, the following:
a. The Project Development Approvals (including the Conditions of Approval).
b. The Existing Land Use Regulations.
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c. Subsequent Development Approvals.
d. Those Subsequent Land Use Regulations to which Developer has agreed in writing.
1.5 “Approval Date ” means the date on which the City Council adopted the Adopting Ordinance. That date is _________________, 2026.
1.6 “CDTFA” means the California Department of Tax & Fee Administration.
1.7 “Citywide CFD” shall have the meaning set forth in Recital J.
1.8 “City” means the City of Carson, a California charter city.
1.9 “City Council” means the City Council of the City of Carson.
1.10 “CMC” means the Carson Municipal Code.
1.11 “Conditions of Approval” means all conditions imposed on the Project by the City, including (without limitation) those recommended by the Los Angeles County Fire Department, as part of the approval of the Project.
1.12 “Confirmed Sales Tax Revenue ” means all Sales Tax revenue collected by the City from the purchase or sale of Project batteries that City can reasonably confirm, pursuant to Section 3.3 of this Agreement, was generated for and collected by the City.
1.13 “Developer” means VESI 27 LLC, a Delaware limited liability company, and its successors and assigns to all or any part of the Property.
1.14 “Developer’s Vested Right” means Developer’s right to complete the Project in accordance with, and to the full extent of, the Project Development Approvals in accordance with the Existing Land Use Regulations.
1.15 “Development” means the improvement of the Property for the purposes of completing the structures, improvements, and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and other facilities and improvements necessary or appropriate for the Project, and the maintenance, repair, or reconstruction of any building, st ructure, improvement, landscaping or facility after the construction and completion thereof.
1.16 “Development Plan” means Developer’s plan for completion of the Project in compliance with and to the full extent of the Project Development Approvals and Applicable Laws.
1.17 “DIF(s)” means Development Impact Fee s agreed to by Developer pursuant to Section 3.1 hereof.
1.18 “Director” means the City’s Community Development Director, or his or her designee.
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1.19 “Effective Date” means the date on which the Adopting Ordinance becomes effective, typically thirty (30) days after the second reading of the Adopting Ordinance.
1.20 “Entitlements” means this Agreement, the CUP, and the DOR, including the associated CEQA review.
1.21 “Exhibit” means an exhibit to this Agreement, unless otherwise specifically referenced to a different agreement or document. The following exhibits are incorporated into the Agreement by reference as though set forth in full:
Exhibit A Legal description of the Property
Exhibit B Depiction of the Property
Exhibit C Detail of fiber optic cable line routes
1.22 “Existing Land Use Regulations ” means (i) all Land Use Regulations in effect on the Approval Date and (ii) any changes to Land Use Regulations enacted on or after the Approval Date and before the Effective Date for which Developer has provided its written consent to allow those changes to apply to the Project.
1.23 “Land Use Regulations” are laws and regulations enacted through legislative actions of the City Council. Land Use Regulations include ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other actions of City, including but not limited to the City ’s General Plan and the CMC (including the Carson Zoning Ordinance, Chapter 1 of Article IX of the CMC), which affect, govern or apply to the development and use of the Property, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement, and construction standards and specifications applicable to the Project. “Land Use Regulations” do not include (i) Project Development Approvals, (ii) regulations relating to the conduct of business, professions, and occupancies generally, (iii) taxes and assessments, (iv) regulations for the control and abatement of nuisances, (v) health and safety regulations, or (vi) any other matter reserved to the City pursuant to Article 5 of this Agreement.
1.24 “Mortgage” means a mortgage, deed of trust, or other security instrument encumbering the Property.
1.25 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender, or each of their respective successors and assigns.
1.26 “Project” as described this Agreement, means the development of the Property as described in Recital D, consistent with and to the full extent of the Project Development Approvals and all applicable Land Use Regulations.
1.27 “Project Development Approvals ” means all Project-specific approvals, including, but not limited to, the Entitlements (minus this Agreement), the Conditions of Approval, Project-specific plans, maps, permits, site plans, design guidelines, variances, conditional use permits, grading, building, and other similar permits, environmental findings and assessments, and any amendments, addenda or modifications to those matters, which were applied for by Developer and are approved by City as required or permitted b y the Applicable
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Laws in order for Developer to complete the Project, provided that those Project Development Approvals are consistent with Developer’s Vested Right, this Agreement, and the Applicable Laws. The Entitlements (minus this Agreement), as examples of Project Development Approvals, have been or are anticipated to be approved , subject to the Conditions of Approval, prior to or in conjunction with the approval of this Agreement. “Project Development Approvals” do not include (i) rules, regulations, policies, and other enactments of general application within the City, (ii) legislative enactments, including this Agreement, or (iii) Land Use Regulations.
1.28 “Property” means the real property described in Exhibit “A” and shown in Exhibit “B.”
1.29 “Reservation of Authority ” means the limitations, reservations, and exceptions to Developer’s Vested Right set forth in Article 5 of this Agreement.
1.30 “Sales Tax” means and includes both (i) the sales and use tax referenced in Chapter 1 of Article VI of the CMC and (ii) the transaction and use tax referenced in Chapter
1.5 of Article VI of the CMC.
1.31 “Subsequent Land Use Regulations ” means those Land Use Regulations which are both adopted and effective on or after the Approval Date and which are not included within the definition of Existing Land Use Regulations.
1.32 “Subsequent Development Approvals” means all Project-specific approvals issued subsequent to the Effective Date in connection with development of the Property, which shall include, without limitation, any changes to the Project Development Approvals.
1.33 “Term” shall have the meaning ascribed to it in Section 2.1, unless earlier terminated as provided in this Agreement.
1.331.34 “Commercial Operation Date” or “COD” shall mean the date on which the Project is fully constructed, tested, and capable of operating on a continuous commercial basis, has passed final inspection, and has received all required approvals for interconnection and operation from the applicable utility and/or grid operator, including Southern California Edison, as evidenced by written confirmation provided to the City. COD shall not be deemed achieved until Developer provides written certification to the City, together with supporting documentation reasonably acceptable to the City, confirming sati sfaction of the foregoing requirements.
2. TERM & GENERAL COVENANTS.
2.1 Term; Extensions.
a. Initial Term. The term of this Agreement (the “Term”) starts on the Effective Date and unless extended pursuant to subsection (b) below, shall expire on either (i) March 1, 204 7, or (ii) the date of expiration or termination of Developer’s leasehold interest in the Property, whichever occurs sooner, subject to any early termination provisions described in this Agreement.
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b. Extensions. Subject to any early termination provisions described in this Agreement and subject to expiration pursuant to clause (ii) of subsection (a) above, Developer shall have the option to extend the expiration date stated in clause (i) of subsection (a) above , to the extent it applies, in one-year increments (each, an “Annual Extension Option”), for a total of up to five (5) years (i.e., to as late as March 1, 2052). In order to exercise any Annual Extension Option, Developer must, no less than 30 day s prior to the then- applicable stated expiration date: (i) give City written notice of Developer’s intent to exercise the applicable Annual Extension Option; and (ii) make a lump sum payment to the City in the amount of $128,562.00 corresponding to the applicable Annual Extension Option (“the Annual Extension Fee”).
For the avoidance of doubt, any Annual Extension Fee that may be paid by Developer pursuant to this subsection shall not be subject to refund or proration in the event this Agreement expires pursuant to clause (ii) of subsection (a) above or is terminated pursuant to any early termination provisions of this Agreement at any time after the corresponding Annual Extension Option period has begun.
2.2 Project Completion. Developer shall complete the Project, including passing final inspection, by no later than five (5) years from the Effective Date. achieve the COD for the Project no later than five (5) years from the Effective Date. If Developer fails to achieve COD by such date, Developer shall pay to the City liquidated damages in the amount of $7,500 per day, for each day of delay, capped at a maximum of $2,500,000. City and Developer acknowledge and agree that it is impracticable or extremely difficult to determine what the actual damages to City would be for a violation of this requirement by Developer, and how those damages might be calculated; (ii) they have made a reasonable endeavor to estimate fair compensation for such a violation ; and (iii) upon doing so, they have concluded that the foregoing liquidated damages amount represents a fair and reasonable estimate of such damages.
2.3 Binding Effect of Agreement . From and following the Effective Date, actions by the City and Developer with respect to the development of the Property for completion of the Project , including actions by the City on applications for Subsequent Development Approvals affecting the Property shall be subject to the terms and provisions of this Agreement.
2.4 Agreement Runs with the Land. This Agreement shall be recorded and shall run with the land. Pursuant to Government Code Section 65868.5, the burdens of this Agreement and each of its provisions shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties, including, but not limited to, all parties that enter into lease agreements with Developer for possession of any part of the Property.
2.5 Covenant Against Discrimination. The Developer covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, cree d, religion, sex, marital status, sexual orientation or gender preference, national origin, or ancestry in the performance of this Agreement. The Developer shall take affirmative action to ensure that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation or gender preference, national origin, or ancestry.
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3. DEVELOPER’S OBLIGATIONS.
As consideration for the granting of Developer’s Vested Right in accordance with Article 4 below and subject to the City’s Reservation of Authority set forth in Article 5 below, Developer shall do the following:
3.1 Development Impact Fees. Developer shall make a one-time payment to the City for the DIF Amount of $189,093.12, calculated at $3.68 per square foot for all square footage of battery enclosures (51,384 square feet) , which DIF A mount shall be adjusted as described in Section 3.1(a)-(b) below depending on the timing of payment . The Parties agree that the DIF Amount is (1) directly related to the impacts of the Project, and (2) roughly proportional to the specific impacts upon public facilities and infrastructure attributable to the Project. Developer agrees to release, defend , indemnify and hold the City h armless from any and all claims, costs (including attorneys’ fees) and liability for any damages, which may arise, directly or indirectly, from the City’s determination, calculation, or imposition of, or Developer’s agreement to pay, the DIF Amount.
a. Timing of Payment of DIF Amount. The DIF Amount is payable in full prior to issuance of a certificate of occupancy or up to twelve (12) months following the issuance of the building permit for the Project , whichever occurs first.
b. DIF Amount Adjustments. All DIF Amounts shall be adjusted annually in accordance with the State of California Construction Cost Index (prior March to current March adjustment) on July 1st of each year.
3.2 O&M Payment. Developer agrees to pay City a lump sum amount of $357,006 (the “O&M Payment”) for general operations and maintenance expenses of the City. Developer shall make the O&M Payment in one lump sum to City prior to issuance of any building permits for the Project, and such payment is a condition precedent to such permit issuance . For the avoidance of doubt, the O&M Payment does not constitute and is not intended to pay the Citywide CFD special taxes.
3.3 Battery Fee. Developer shall pay City a “Battery Fee” in an amount equal to the sum of $1,487,500 (the “Maximum Battery Fee Amount”) less the total amount of Confirmed Sales Tax R evenue collected by the City , subject to a guaranteed minimum of $250,000 (the “Minimum Battery Fee Amount”). Within thirty (30) days of the Effective Date, Developer shall pay City the Minimum Battery Fee Amount via wire transfer . Prior to the issuance of any demolition, grading or building permits, Developer shall provide City with a bond, on a form reasonably acceptable to the Director and City Attorney, securing payment of the Battery Fee, in an amount equal to the Maximum Battery Fee Amount less the Minimum Battery Fee Amount (the “Bond”), and the issuance and effectiveness of such Bond shall be a condition precedent to such permit issuance. The Bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his/her power of attorney. The Bond shall be unconditional and remain in force during the entire term of this Agreement until released pursuant to Section 3.3(a), below, and shall be binding on the successors- in-interest of the obligor/principal (i.e., Developer) and surety. The Bond shall be issued by a company qualified to do business in California, rated “A” or better in the most recent edition of Best’s Rating Guide, The Key Rating Guide or in the Federal Register, and having a financial
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category Class VII or better, and shall provide for the City to receive at least 30 days’ prior notice from the surety, via the means specified in Section 13.2, below, of any impending cancellation or lapse in effectiveness of the Bond due to nonpayment of premiums or any other reason. a. Confirmed Sales Tax Revenue; Effect on Battery Fee. No later than sixty (60) days after the expiration of time for Developer to provide City comments on the Confirmed Sales Tax Revenue Determination pursuant to subsection (b) below, City shall calculate the amount of the Battery Fee by subtracting the Confirmed Sales Tax Revenue from the Maximum Battery Fee Amount (except that in no event shall the Battery Fee be reduced below the Minimum Battery Fee Amount) and notify Developer in writing of same (the “Battery Fee Notice”). If the Battery Fee in the Battery Fee Notice is equal to the Minimum Battery Fee Amount, then no later than thirty (30) days following the date the Battery Fee Notice is delivered to Developer and Developer’s subsequent written request, City shall release or authorize cancellation of the Bond. If the Battery Fee in the Battery Fee Notice is greater than the Minimum Battery Fee Amount, within sixty (60) days of receipt of the Battery Fee Notice, Developer shall pay to City the amount of the Battery Fee less the Minimum Battery Fee Amount. Notwithstanding any other provision of this Agreement, in the event Developer fails to timely pay said amount, City shall have the right to immediately call and receive the proceeds of the Bond in an amount reflective of the Confirmed Sales Tax Revenue . No final Certificate of Occupancy shall issue until the Battery Fee has been paid in full. A temporary Certificate of Occupancy (“TCO”) may issue prior to the Battery Fee being paid in full provided (without limitation as to other applicable requirements for issuance of a TCO or payment of the Battery Fee) Developer demonstrates to the satisfaction of the Director that the Bond is and will be effective and binding on Developer and any premiums are paid for at least one year beyond the date of issuance of the TCO. If a TCO issues prior to the Battery Fee being paid in full pursuant to this paragraph, then the maximum cumulative term (i.e., total duration) of effectiveness of the TCO shall not exceed one year; if one year of cumulative effectiveness of the TCO elapses without issuance of a final Certificate of Occupancy and the Battery Fee has not been paid in full, then (i) the City may immediately revoke Developer’s business license and not reinstate it until the Battery Fee is paid in full, and (ii) the TCO will immediately and automatically lapse and terminate and full payment of the Battery Fee shall be required as a pre-requisite to any further, extended or renewed effectiveness of the TCO or any issu ance of a final Certificate of Occupancy. No later than thirty (30) days following such payment by Developer and Developer’s written request, City shall release or authorize cancellation of the Bond.
b. Tracking of Battery Fee. No later than forty-five (45) days following the filing with the CDTFA of the Sales Tax return that reports sales tax on the sale of the Project batteries to Developer, Developer will provide City with copies of all information that Developer considers reasonably relevant to determining the Confirmed Sales Tax Revenue, which shall include,
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without limitation, (i) invoices for the purchase of the Project batteries reflecting the amount of Sales Tax charged, (ii) evidence of payment of the invoice amount to the retailer of the Project batteries, (iii) all Sales Tax returns filed with the CDTFA related to the sale and purchase of Project batteries, (iv) identification of the accounts that are or will be reporting the Sales Tax related to the sale and purchase of the Project batteries, and (v) evidence of remittance to the CDTFA of the amount reflected as due on the Sales Tax Returns (provided Developer shall have the right to first redact any portions of such documents which are privileged or which are not relevant to determining the Confirmed Sales Tax Revenue). Within one hundred eighty (180) days of receipt of such information from Developer, City, with cooperation from Developer as may be reasonably requested by City, will undertake a reasonable and good faith analysis of the Sales Tax returns and other information provided by Developer, toge ther with any other information reasonably deemed relevant by City, and will thereby ascertain the Confirmed Sales Tax Revenue and notify Developer in writing of such determination (the “ Confirmed Sales Tax Revenue Determination”). In the event the Confirmed Sales Tax Revenue is less than the Maximum Battery Fee Amount, such Confirmed Sales Tax Revenue Determination shall describe in detail the information relied upon by the City in calculating the Confirmed Sales Tax Revenue and, upon request by Developer, City shall provide such information to Developer (to the extent such information was not provided to City by Developer and such disclosure is not prohibited by law). Developer shall have thirty (30) days following the later of (i) receipt of the Confirmed Sales Tax Revenue Determination, or (ii) receipt of the informat ion requested from City pursuant to this sub section (b), to provide any comments or additional information to City regarding the determination of the Confirmed Sales Tax Revenue, which information the City shall consider in good faith. c. For the avoidance of doubt, the foregoing relates only to the determination of the amount of the Battery Fee; in all circumstances, in addition to the Battery Fee, City shall be entitled to all Sales Tax revenue generated to the City from the Project , irrespective of the amount of Confirmed Sales Tax Revenue and/or the amount of the Battery Fee.
3.4 Pre-Operation Safety Meetings. At least 30 days prior to issuance of a certificate of occupancy for the Project, Developer shall conduct two safety meetings, to be held at least 30 days apart from one another, in coordination with the Los Angeles County Fire Department for the benefit of the public as it relates to the presence and operation of the Project on the Property. The safety meetings shall cover, without limitation, alarm protocols, evacuation routes, and battery energy storage safety basics. The meetings shall be open for the public to attend, and Developer shall provide mailed written notice to the City and all properties within a 2,500 radius of the Property at least 10 days prior to each meeting.
3.5 Annual Safety Meetings . After issuance of a certificate of occupancy for the Project, on an annual basis throughout the life of Project operations, Developer shall conduct a safety meeting in coordination with the Los Angeles County Fire Department for the benefit of the
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public as it relates to the presence and operation of the Project on the Property . The annual meetings shall be open for the public to attend, and Developer shall provide mailed written notice to the City and all properties within a 2,500 radius of the Pro perty at least 10 days prior to each annual meeting.
3.6 Emergency Evacuation Plan . Prior to issuance of a certificate of occupancy for the Project, Developer shall prepare a comprehensive written emergency evacuation plan, detailing protocol, processes and procedures for evacuating affected areas as necessary to protect public health and safety in the event of a fire, explosion or other incident at the Project site during Project operations. The plan shall include, without limitation, primary and secondary evacuation routes, staging areas, traffic control, and emergency communication protocols. Developer shall submit the plan to the Los Angeles County Fire Department and the Los Angeles County Sheriff’s Department, and must obtain both agencies’ approval of the plan and submit to the City a copy of the approved plan, together with proof of such agencies’ approval thereof, prior to issuance of a certificate of occupancy for the Project.
3.7 Telephone Hotline. Prior to issuance of a certificate of occupancy for the Project, Developer shall establish a telephone hotline, which shall be monitored and responded to by Developer at all times throughout the life of Project operations, for members of the public and the City to call to ask questions, make comments, submit complaints, or report safety concerns related to the Project operations. The existence of the telephone hotline and the associated telephone number shall be publicized and made publicly available by the Developer . The City may also publicize and make publicly available t he existence of the telephone hotline and the associated telephone number as Developer’s telephone hotline, and may call the telephone hotline for its intended purposes, but the City shall bear no responsibility whatsoever related to the telephone hotline, the associated telephone number, or the calls thereto.
3.8 On-Site Project Monitoring. Developer shall maintain at least one employee on - site at all times throughout the life of Project operations to provide on -site monitoring of the Project, which shall be in addition to the above-referenced remote Project monitoring activities, to help ensure early detection and prevention of any fires, explosions, toxic releases, or other hazardous or emergency incidents at the Property , and to help ensure that appropriate corrective/mitigating action and notification, alarm and/or evacuation measures are taken without delay if and when such an incident occurs.
3.9 High School Summer Internships. Developer shall pay the City $40,000 annually for the term of this Agreement, with the first payment due prior to issuance of building permits for the Project, to provide funding for the City to establish and maintain (potentially in partnership with relevant local private companies) a program of paid summer internships for high school students enrolled in schools located in the City of Carson , which internships shall be focused on renewable energy, battery technology and zero-emission systems.
3.10 Towne Avenue Elementary School Community Gardens . Developer shall pay the City $ 25,000 annually for the term of this Agreement, with the first payment due prior to issuance of building permits, to provide funding for the City to establish and maintain community gardens and environmental education programs at or in partnership with Towne Avenue Elementary School. If so directed by the City in any given year, Developer shall make the annual payment directly to Towne Avenue Elementary School.
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3.11 Youth Sports Programming. Developer shall pay the City $30,000 annually for the term of this Agreement, with the first payment due prior to issuance of building permits, to provide funding for the youth sports programming of the City’s Community Services Department.
3.12 Carson Experience. Developer shall make a one -time contribution in the amount of $100,000 in sponsorship of the Carson Experience in connection with the Los Angeles 2028 Olympic Games-related events that will occur in the City.
3.13 Costs of Incident Responses to Property . Developer shall be responsible to reimburse the City for its costs of all law enforcement, public safety and fire department responses (e.g., City Public Safety & Emergency Management Department, Los Angeles County Sheriff’s Department as contracted by City, Los Angeles County Fire Department as contracted by City) to the Property throughout the life of Project operations. This includes responses to specific incidents occurring at the Property as well as the City’s incremental costs of increasing the level of services provided or contracted for by the City as reasonably determined necessary by the City as a result of the Project. This also includes costs of temporary relocation of residents in the event that any City residents are required to evacuate and remain out of their residences for one or more nights due to an incident occurring at the Project Site. Prior to issuance of a certificate of occupancy for the Project, Developer shall submit to City an advance deposit in the amount of $500,000, to be held by the City in a separate account and applied toward these obligations, and Developer shall thereafter replenish the deposit as requested by the City in writing, within 10 days of City’s request, as necessary to maintain a minimum deposit balance of no less than $250,000. Any deposit balance remaining unspent at the end of the life of Project operations shall be refunded to Developer within 30 days of Developer’s written request to City therefor. City shall keep an accounting of the deposit amounts which have been paid to City by Developer pursuant to this section. Upon written request, City shall provide an account summary of the account to Developer, which shall include descriptions of the City costs, including the date, amount, and the type of activity for which the cost was incurred. Failure of City to provide any accounting shall not excuse Developer’s duty to perform any act, including the duty to make full and timely deposits required under this Section.
Developer may question or challenge any City costs set forth in the accounting and may appeal same to the City Council.
3.14 Point of Purchase and Sale of Electricity. Developer shall pay the City an amount equivalent to $1.50 for each megawatt-hour (MWh) of electricity transferred to or from the Project.
Payments shall be made annually, with the first annual payment due within 15 days of the first anniversary of the COD (the “Due Date”), for the first one -year period commencing from the COD, and subsequent annual payments due on each anniversary of the Due Date for the subsequent one-year periods, respectively.
Commencing on the first anniversary of the COD, and on each anniversary thereafter, the above- referenced per-megawatt-hour rate shall increase by 3%, compounded year over year.
Notwithstanding the foregoing, the total annual payment required pursuant to this Section shall be capped at $1,500,000 in any given one-year payment period.
Payments made under this Section shall be used by the Cit y for public health, safety and welfare purposes, in the City’s sole discretion.
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3.15 Perimeter Wall Height . The perimeter wall that will be installed around the Project site for safety and security purposes shall be 13’ in height, increased from the 10’ that was previously proposed or recommended for the Project.
3.16 Investment Tax Credit Participation. Developer shall pay to City an amount equal to one and one-half percent (1.5%) of any net proceeds generated or received by Developer from any sale, transfer or other monetization of any federal Investment Tax Credits (ITC) associated with the Project. Payment(s) shall be made within sixty (60) days of any ITC sale, transfer or other monetization, together with notice of the transaction, a statement of the full monetization amount, and any other information that may be requested by the City Manager or designee as necessary to enable the City to verify compliance with this section.
3.17 Decommissioning; Security. At the end of Project life , Developer shall promptly decommission and remove the Project and all Project-related facilities from the Property. Prior to COD, Developer shall post a cash-funded bond or irrevocable letter of credit in an amount equal to 100% of the estimated cost to decommission and remove the Project and all Project -related facilities, as determined by the City Engineer or designee . No parent company guarantee will suffice to satisfy this obligation. The estimated cost, once initially determined, shall automatically increase annually by 3%, and shall be recalculated by the City Engineer or designee every 5 years.
4. DEVELOPMENT OF THE PROPERTY.
4.1 Scope of Developer’s Vested Right. Subject to the Reservation of Authority set forth in Article 5, Developer shall have the vested right to develop the Project to the full extent permitted under the Applicable Laws and this Agreement (“Developer’s Vested Right”).
4.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings and structures , and the design, improvement and construction standards and specifications applicable to the Development of the Property, shall be as set forth in the Existing Land Use Regulations which were in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement.
4.3 Rights under State and Federal Law. Developer shall retain all rights it has under state and federal law, including, but not limited to, Developer’s rights under Government Code Section 65865.2.
4.4 Apportionment. Developer shall have the right to apportion the uses and intensities of the Project between itself and any subsequent owners, upon the sale, transfer, or assignment of all or any portion of the Property, so long as such apportionment is consistent with the Applicable Laws and this Agreement.
4.5 Lesser Development. Without amending this Agreement, Developer shall have the right to elect to develop and construct upon all or any portion of the Property a Project of lesser height or building or structure size than that permitted by the Project Development Approvals provided that the Project otherwise complies with the Project Development Approvals and this Agreement.
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4.6 Project Development Approvals; Subsequent Development Approvals.
The Project Development Approvals for the Project may require the processing of Subsequent Development Approvals. Subject to the provisions of Section 4.7 below, the City shall accept for processing, review and action, all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters in accordance with the Existing Land Use Regulations. The parties acknowledge that subject to the Existing Land Use Regulations, under no circumstances shall City be obligated in any manner to approve any Subsequent Development Approval, or to approve any Subsequent Development Approval with or without any particular condition. Ho wever, unless otherwise requested by Developer, City shall not , without authority pursuant to the Existing Land Use Regulations, amend or rescind any Subsequent Development Approvals respecting the Property after such approvals have been granted by the Cit y. Processing of Subsequent Development Approvals or changes in the Project Development Approvals made pursuant to Developer’s application shall not require an amendment to this Agreement. This Agreement shall not prevent City from denying or conditionall y approving any application for a Subsequent Development Approval on the basis of the Existing Land Use Regulations.
4.7 Role of Project Development Approvals . Except as provided within this Agreement, the Project Development Approvals shall exclusively control the uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings or structures, the provisions for reservation or dedication of land for public purposes , and the design, improvement, and construction standards and specifications applicable to the Project.
4.8 Moratorium. Notwithstanding any other provision of this Agreement, no future amendment of any existing City ordinance or resolution or any subsequent ordinance, resolution or moratorium, enacted either by the City Council or by voter approved initiative, that purports to impose or result in a limitation on the Project, imposed by City, shall apply to govern, or regulate the Project or development or use of the Developer Property during the Term. In the event of any such subsequent action by City, Deve loper shall continue to be entitled to apply for and receive Project Development Approvals or Subsequent Development Approvals in accordance with the Existing Land Use Regulations, subject only to the exercise of the City’s Reservation of Authority set forth herein.
4.9 Maintaining Property. The Property must at all times be maintained and generally kept in a clean condition, in accordance with the City’s Code Enforcement regulations.
5. CITY’S RESERVATION OF AUTHORITY.
Notwithstanding Developer ’s Vested Right, the Project is subject to the following Subsequent Land Use Regulations:
5.1 City’s Discretion Under Applicable Laws. In considering future applications, if any, for a Subsequent Development Approval, the City may exercise its regulatory discretion to the extent permitted by the Applicable Laws.
5.2 Uniform Codes. Changes adopted by the International Conference of Building Officials, or other similar body, as part of the then most current versions of the Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National Electrical Code, or other such Uniform Codes, and also adopted by City as Subsequent
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Land Use Regulations, but only if applicable City -wide as of the date a complete application is submitted for City plan check for each required Project building permit.
5.3 Emergencies. Emergency rules, regulations, laws, and ordinances within the City’s police power that would limit the exercise of Developer ’s Vested Right ( “Conflicting Emergency Regulations”), provided that the Conflicting Emergency Regulations:
a. Result from a sudden, unexpected emergency declared by the President of the United States, Governor of California, County Board of Supervisors and applicable to incorporated areas, including the City, or the City Council; b. Address a clear and imminent danger, with no effective reasonable alternative available that would have a lesser adverse effect on Developer’s Vested Right;
c. Do not primarily or disproportionately impact the development of the Project; and
d. Are based upon findings of necessity established by a preponderance of the evidence at a public hearing.
5.4 Laws of Other Jurisdictions. Other public agencies not subject to control by City may possess authority to regulate aspects of the Project. This Agreement does not limit the authority of such other public agencies. Therefore:
a. Federal, state, county, and multi -jurisdictional laws and regulations (the “Additional Regulations”), including regional impact fees, which City is required to enforce against the Property or the Project. b. If an Additional Regulation is enacted after the Effective Date and prevents or precludes compliance with one or more of the provisions of this Agreement, those provisions shall be modified or suspended as may be necessary to comply with the Additional Reg ulation. In that event, this Agreement shall remain in full force and effect to the extent it is not inconsistent the Additional Regulation and to the extent that the suspension or modification necessitated by the Additional Regulation does not deny one of the Parties its primary benefits under this Agreement. c. Developer shall apply in a timely manner for such other permits and approvals that are lawfully required by other governmental or quasi - governmental agencies in order to allow the Project to be constructed. City shall provide Developer reasonable cooperation in Developer ’s efforts to obtain such permits and approvals. The Parties shall cooperate and use reasonable efforts in coordinating the implementation of the Development with other public agencies, if any, having jurisdiction over the Property or the Project.
5.5 Modification or Suspension by Federal or State Laws. In the event that Federal or State laws or regulations, enacted after the Effective Date of this Agreement, prevent
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or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such Federal or State laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provision impractical to enforce.
5.6 Energy Efficient and Sustainable Building Design. All Project buildings shall promote sustainable and energy efficient practices through compliance with California Code of Regulations, Title 24.
5.7 Employment Outreach for Local Residents. A goal of the City with respect to this Project and other major projects within the City is to foster employment opportunities for Carson residents. To that end, Developer covenants that with respect to the construction, operation and maintenance of the Project, the Developer shall make reasonable efforts to cause all solicitations for full or part -time, new or replacement, employment relating to the construction, operation and maintenance of the Project to be adve rtised in such a manner as to target local City residents and shall make other reasonable efforts at local employment outreach as the City shall approve. Developer represents and warrants to the City that it will hire no less than 150 union carpenters for construction of the Project. Developer shall also notify the City of jobs available at the Project such that the City may inform City residents of job availability at the Project. Developer will inform its purchasers , sellers and lessees of the provisions of these requirements. Nothing in this paragraph shall require Developer to offer employment to individuals who are not otherwise qualified for such employment. Without limiting the generality of the foregoing, the provisions of this Section 5.7 are not intended, and shall not be construed, to benefit or be enforceable by any person whatsoever other than City.
5.8 Prevailing Wages. Developer’s cost of developing the Project and constructing all of the on-site and off-site improvements, if any, at or about the Property required to be constructed for the Project shall be borne by Developer. Developer is aware of the laws of the State governing the payment of prevailing wages on public projects and will comply with same and will defend, hold harmless, and indemnify City in the event Developer fails to do so.
As the City is not providing any direct or indirect financia l assistance to Developer, the Project should not be considered to be a “public work” “paid for in whole or in part out of public funds,” as described in California Labor Code Section 1720. Accordingly, it is believed by the parties that Developer is not required to pay prevailing wages in connection with any aspect of the Development or the construction of the Project. However, to the extent that (contrary to the parties’ intent) it is determined that Developer was required to pay prevailing wage and has not paid prevailing wages for any portion of the Project, Developer shall defend , indemnify, and hold the City (which, for purposes of this section, shall include its related agencies, officers, employees, agents and assigns) harmless from and against any and all increase in construction costs, or other liability, loss, damage, costs, or expenses (including reasonable attorneys ’ fees and court costs) arising from or as a result of any action or determination that Developer failed to pay prevailing wages in connection with the construction of the Project. City shall reasonably cooperate with Developer regarding any action by Developer hereunder challenging any determination that the Project is subject to the payment of prevailing wages. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without Developer ’s consent as to the City ’s liabilities or rights only, but should it do so, City shall waive the
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indemnification herein provided such waiver occurs prior to the issuance of any judgment in the matter.
5.9 Fees, Taxes, and Assessments.
a. Processing Fees. The Developer shall pay all processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Project Development Approvals , including but not limited to, City Attorney fees incurred by City for the review, preparation and negotiation of th e Entitlements, inclusive of this Agreement, and for monitoring compliance with any Project Development Approvals granted or issued , in accordance with the Reimbursement and Indemnification Agreement entered into by and between the Parties effective April 13, 2023 (“Reimbursement Agreement”), and as the same may be amended from time to time by mutual agreement of the Parties. b. Permit Fees. Except as expressly provided in this Agreement, Developer shall pay all standard permit fees and other fees and charges which are standard and uniformly-applied to similar projects in the City. c. General Charges . Nothing herein shall prohibit the application of the following, if lawfully imposed upon the Property , excluding the Citywide CFD special taxes:
(i) Additional Taxes, Fee, and Charges. Developer, or Developer ’s Project occupants, shall pay all normal and customary taxes, fees, and charges applicable to all permits necessary for the Project, and any taxes, fees, and charges hereafter imposed by City , which are standard and uniformly-applied to similar properties in the City. (ii) Developer, or Developer ’s Project occupants, shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis such as business license fees or taxes, sales or use taxes, transient occupancy taxes, utility taxes, and public safety taxes; (iii) Developer, or Developer’s Project occupants, shall be obligated to pay any existing or future fees or assessments imposed on an area - wide basis (such as landscape and lighting assessments and community services asse ssments other than Citywide CFD special taxes);
(iv) Developer, or Developer’s Project occupants, shall be obligated to pay any fees imposed pursuant to any Uniform Code.
(v) Developer, or Developer’s Project occupants, shall be obligated to pay any utility fees and charges, including amended rates thereof, for City services such as electrical utility charges, water rates, and sewer rates.
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5.10 Inconsistencies. It is expressly agreed that in the event of any clear and explicit conflict between the provisions or conditions of the Existing Land Use Regulations, this Agreement, and the Project Development Approvals, then the provisions or conditions of the following shall prevail in this order : (a) this Agreement; (b) Project Development Approvals, except that any more restrictive Conditions of Approval shall prevail over any conflicting provisions of this Agreement; (c) Existing Land Use Regulations that are subject to Developer’s Vested Right.
6. ANNUAL REVIEW.
6.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, at least once during every twelve (12) month period of the Term, City shall review the good faith compliance of Developer with the terms of this Agreement ( “Annual Review”). No failure on the part of City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement, nor shall it be deemed a breach on the part of City or Developer. The cost of the Annual Review shall be borne by Deve loper and Developer shall pay the actual and reasonable costs incurred by the City for such review.
6.2 Special Review. The City Council may, in its sole and absolute discretion, order a special review of compliance with this Agreement at any time at City ’s sole cost (“Special Review”). Developer shall cooperate with the City in the conduct of such Special Reviews.
6.3 Standards for Annual Review. During the Annual Review, Developer shall demonstrate good faith compliance with the terms of this Agreement. “Good faith compliance” shall be established if Developer is in substantial compliance with the material terms and conditions of this Agreement.
6.4 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with the Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. The procedure for an Annual Review or Special Review shall be as follows:
a. As part of either an Annual Review or Special Review, within ten (10) days of a request for information by the City, the Developer shall deliver to the City all information and supporting documents r easonably requested by City (i) regarding the Developer ’s performance under this Agreement demonstrating that the Developer has complied in good faith with the terms of this Agreement, and (ii) as required by the Existing Land Use Regulations.
b. The City Manager, or his/her designee, shall prepare and submit to Developer a written report on the performance of this Agreement and identify any perceived deficiencies in Developer ’s performance of this Agreement. The Developer may submit written responses to the report and Developer’s written response shall be included in the City Manager ’s report. If the City Manager determines that the Developer has substantially complied with the terms and conditions of this Agreement, the Annual or Special Review shall be concluded.
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c. If any deficiencies are noted, or if requested by a Councilmember, a public hearing shall be held before the City Council at which the Council will review the City Manager’s report. The report to Council shall be made at a regularly-scheduled City Council meeting occurring as soon as possible, subject to the requirements of the Brown Act, after the commencement of the Annual or Special Review process outlined in this Section 6.4. If the City Council finds and determines, based on substantial evidence, that the Developer has not substantially complied with the terms and conditions of this Agreement for the period under review, the City may declare a default by the Developer in accordance with Article 7.
d. Neither party hereto shall be deemed in breach if the reason for non - compliance is due to a “force majeure” as defined in, and subject to the provisions of, Section 13.110.
6.5 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review or a Special Review, Developer is found to be in compliance with this Agreement, City shall, upon written request by Developer, issue a Certificate of Agreement Compliance (“Certificate”) to Developer stating that after the most recent Annual Review or Special Review and based upon the information known or made known to the City Manager, Planning Commission, and City Council that (i) this Agreement remains in effect and (ii) Developer is in compliance. The Certificate, whether issued after an Annual Review or Special Review, shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer shall at its cost record the Certificate with the County Recorder. Additionally, Developer may at any time request from the City a Certificate stating, in addition to the foregoing, which obligations under this Agreement have been fully satisfied with respect to the Property, or any lot or parcel within the Property.
6.6 Review Process Not a Prerequisite to Declaring a Default . Neither the Annual Review nor Special Review procedure is a prerequisite to either party declaring a default and initiating the default and cure procedure in Article 7. In other words, either party may declare a default at any time without first undertaking the Annual Review or Special Review process.
6.7 Public Hearings. The public hearing prescribed by Section 6.4 is independent of, and in addition to, any further hearing procedures relating to defaults and remedies prescribed in Article 7 below. Thus, if the City Council finds that the Developer has not substantially complied with the terms and conditions of this Agreement as part of a review process pursuant to Section 6.4 and determines to declare a default, the City Council is still required to follow the notice/cure process (Section 7.2) and the ter mination hearing process (Section 7.4) before terminating this Agreement.
7. DEFAULTS AND REMEDIES.
7.1 Remedies. Developer shall not bring an action against City nor obtain any judgment for damages for a regulatory taking, inverse condemnation, unreasonable exactions, reduction in value of property, delay in undertaking any action, or asserting any other liability for any matter or for any cause which existed or which the Developer knew of or should have known of prior to the time of entering into this Agreement. Neither Party hereto shall be liable, whether in contract, tort or otherwise, for payment of an y special, indirect, punitive, incidental,
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consequential, or exemplary damages arising out of this Agreement, including but not limited to loss of business opportunity or profit, loss of use, loss of goodwill or business stoppage, even if a Party knew o r should have known of the possibility of such damages, except nothing in this sentence shall be construed to limit or curtail in any way Developer’s obligations pursuant to Articles 8 or 9 of this Agreement. Developer acknowledges its remedies are adequate to protect Developer’s interest hereunder and the waiver made herein is made in consideration of the obligations assumed by the City hereunder.
7.2 Declaration of Default & Opportunity to Cure.
a. Rights of Non-Defaulting Party after Default. The parties acknowledge that both parties shall have hereunder all legal and equitable remedies as provided by law following the occurrence of a default or to enforce any covenant or agreement herein except as provided in Section 7.1. Before this Agreement may be terminated or action may be taken to obtain judicial relief the party seeking relief (“Non-Defaulting Party”) shall comply with the notice and cure provisions of this Section 7.2.
b. Notice and Opportunity to Cure. A Non-Defaulting Party in its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of the other party (“Defaulting Party ”) to perform any material duty or obligation of the Defaulting Party under the terms of this Agreement. However, the Non - Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party to cure such breach or failure (the “Default Notice”).
The Defaulting Party shall be deemed in Default under this Agreement, if the breach or failure can be cured, but the Defaulting Party has failed to take such actions and cure such default within thirty (30) days after the date of such notice or ten (10) days for monetary defaults (or such lesser time as may be specifically provided in this Agreement). However, if such non - monetary Default cannot be cured within such thirty (30) day period, and if and, as long as the Defaulting Party does each of the following:
(i) Notifies the Non -Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period;
(ii) Notifies the Non -Defaulting Party of the Defaulting Party ’s proposed cause of action to cure the default;
(iii) Promptly commences to cure the default within the thirty (30) day period;
(iv) Makes periodic reports to the Non -Defaulting Party as to the progress of the program of cure; and
(v) Diligently prosecutes such cure to completion.
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Then the Defaulting Party shall not be deemed in breach of this Agreement.
7.3 Termination Notice. Upon receiving a Default Notice, should the Defaulting Party fail to timely cure any default, or fail to diligently pursue such cure as prescribed above, the Non -Defaulting Party may seek termination of this Agreement, in which case the Non - defaulting Party shall provide the Defaulting Party with a written notice of intent to terminate this Agreement ( “Termination Notice ”). The Termination Notice shall state that the Non - defaulting Party will elect to terminate this Agreement within th irty (30) days and state the reasons therefor (including a copy of any specific charges of default or a copy of the Default Notice) and a description of the evidence upon which the decision to terminate is based. Once the Termination Notice has been issued , the Non -Defaulting Party’s election to terminate this Agreement will only be rescinded if so determined by the City Council pursuant to Section 7.4.
7.4 Hearing Opportunity Prior to Termination. If Developer is the Defaulting Party pursuant to Section 7.3, then the City’s Termination Notice to Developer shall additionally specify that Developer has the right to a hearing prior to the City ’s termination of any Agreements (“Termination Hearing”). The Termination Hearing shall be scheduled as an open public hearing item at a regularly-scheduled City Council meeting within thirty (30) days of the Termination Notice, subject to any legal requirements including but not limited to the Ralph M.
Brown Act, Government Code Sections 54950-54963. At said Termination Hearing, Developer shall have the right to present evidence to demonstrate that it is not in default and to rebut any evidence presented in favor of termination. Based upon substantial evidence presented at the Termination Hearing, the Council may, by adopted resolution, act as follows:
a. Decide to terminate this Agreement; or
b. Determine that Developer is innocent of a default and, accordingly, dismiss the Termination Notice and any charges of default; or
c. Impose conditions on a finding of default and a time for cure, such that Developer’s fulfillment of said conditions will waive or cure any default.
Findings of a default or a conditional default must be based upon substantial evidence supporting the following two findings: (i) that a default in fact occurred and has continued to exist without timely cure, and (ii) that such default has caused or will cause a material breach of this Agreement and/or a substantial negative impact upon public health, safety and welfare, the environment, or such other interests that the City and public may have in the Project.
7.5 Rights and Duties Following Termination. Upon the termination of this Agreement, no party shall have any further right or obligation hereu nder except with respect to (i) any obligations to have been performed prior to said termination, (ii) any default in the performance of the provisions of this Agreement which has occurred prio r to said termination, or (iii) the indemnification provisions of Article 8 . Termination of this Agreement shall not affect either party ’s rights or obligations with respect to an y Development Approval granted prior to such termination.
7.6 Waiver of Breach . By not challenging any Development Approval within ninety (90) days of the action of City enacting the same, Developer shall be deemed to have
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waived any claim that any condition of approval is improper or that the action, as approved, constitutes a breach of the provisions of this Agreement.
7.7 Interest on Monetary Default. In the event Developer fails to perform any monetary obligation under this Agreement, Developer shall pay interest thereon at the rate of six and one-half percent (6.5%) per annum from and after the due date of said monetary obligation until payment is actually received by City.
8. THIRD PARTY LITIGATION.
8.1 Indemnity Obligations on Third-Party Claims
a. Developer hereby agrees to indemnify, defend, and hold City, its officers, agents, employees, members of its City Council and any commission, partners and representatives (" City Indemnitees") harmless from any and all claims, actions, suits, damages, liabilities, and any other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature) (collectively, " Claims"), asserted against City or City Indemnitees arising out of or in connection with this Agreement, including, without limitation, (i) City's approval of this Agreement as provided in Section 1.1 and all documents related to any of the Project Development Approvals, Conditions of Approval, permits, or other entitlements for the Project and issues related thereto (including, City’s determinations regarding CEQA compliance and/or any other development incentives granted to the Project), (ii) the development or operation of the Project, and (iii) liability for damage or claims for damage for personal injury includi ng death and claims for property damage which may arise from, or are attributable to, Developer's (or Developer’s contractors, subcontractors, agents, employees or other persons acting on Developer's behalf (" Developer's Representatives ")) performance of its obligations under this Agreement and/or the negligence or misconduct of Developer or of Developer’s Representatives which relate to the Project or the Property. b. The City shall provide the Developer with notice of the pendency of such Claims within ten (10) days of being served or otherwise notified of such Claims and shall request that the Developer defend such action. The Developer may utilize the City Attorney’s office or use legal counsel of its choosing, but shall reimburse the City for any necessary legal cost incurred by City. In all cases, City shall have the right to utilize the City Attorney’s office in any legal action. The Developer shall provide a de posit in the amount of 100% of the City ’s estimate, in its sole and absolute discretion, of the cost of litigation, including the cost of any award of attorney ’s fees, upon receipt of an itemized invoice /statement from the City showing such estimate. If the Developer fails to provide the deposit, and after compliance with the provisions of this Section 8.1, the City may abandon the action and the Developer shall pay all costs resulting therefrom and City shall have no liability to the Developer. The Developer’s obligation to pay the cost of the action, including judgment, shall extend until judgment. After judgment in
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a trial court, the parties must mutually agree as to whether any appeal will be taken or defended. City agrees that it shall fully cooperate with the Developer in the defense of any matter in which the Developer is defending and/or holding the City harmless.
8.2 Hold Harmless: Developer ’s Construction, and Other Activities. The Developer shall defend, save and hold the City and its elected and appointed boards, commissions, officers, agents, and employees harmless from any and all claims, costs (including attorneys’ fees) and liability for any damages, personal injury or death, which may arise, directly or indirectly, from the Developer ’s or the Developer ’s agents, contractors, subcontractors, agents, or employees ’ Project construction activities and operations un der this Agreement, whether such Project construction activities and operations be by the Developer or by any of the Developer’s agents, contractors or subcontractors or by any one or more persons directly or indirectly employed by or acting as agent for the Developer or any of the Developer ’s agents, contractors or subcontractors. Nothing herein shall be construed to mean that the Developer shall hold the City harmless and/or defend it from any claims arising from, or alleged to arise from, the sole neglig ence or gross or willful misconduct of the City ’s officers, employees, agents, contractors or subcontractors.
8.3 Loss and Damage. City shall not be liable for any damage to property of Developer or of others located on the Property, nor for the loss of or damage to any property of Developer or of others by theft or otherwise. City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Property or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or haz ard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever nature. Nothing herein shall be construed to mean that the Developer shall bear liability for the sole negligence or gross or willful misconduct of the City ’s officers, employees, agents, contractors of subcontractors.
8.4 Non-liability of City Officers and Employees. No official, agent, contractor, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or to its successor, or for breach of any obligation of the terms of this Agreement.
8.5 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects the financial interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any state statute or regulation.
8.6 Survival of Indemnity Obligations. All indemnity provisions set forth in this Agreement shall survive expiration or sooner termination of this Agreement for any reason other than a default by City.
8.7 If a Claim covered by this Article 8 also constitutes a “Claim or Liability” for which Developer is obligated to indemnify, defend and hold harmless the City pursuant to Article 9 of the Reimbursement Agreement, then the provisions of this Article 8 shall supersede and
01007.0005 962849.20 28
prevail over said Reimbursement Agreement provisions to the extent of any conflict re lated to the required procedures for defense or indemnification of the Claim.
9. INSURANCE.
9.1 Types of Insurance.
a. General Liability Insurance . Prior to commencement and until completion of construction of improvements by Developer on the Property, Developer shall, at its sole cost and expense, keep or cause to be kept in force, for the mutual benefit of City and Developer, commercial general liability insurance against claims and liability for bodily injury or death arising from the use, occupancy, disuse or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property or for property damage. Such policy shall provide protection of at least $5,000,000 per occurrence, and at least $ 5,000,000 for Products and Completed Operations , and $ 10,000,000 in the general aggregate and Products and Completed Operations Aggregate. Limits can be attained with the purchase of an excess/umbrella policy.
b. Worker’s Compensation. To the extent Developer and its contractors utilize employees for any portion of the Project , Developer and such contractors shall also furnish or cause to be furnished to City evidence reasonably satisfactory to it that Developer and any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries workers ’ compensation insurance as required by law.
c. Automobile Liability Insurance. Developer shall ensure that all contractors with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder maintains automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Developer arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $5,000,000 combined single limit for each accident. Limits can be attained with a combination of primary policy and excess/umbrella.
d. Pollution Liability Insurance. Environmental Impairment Liability Insurance shall be written on a Pollution Liability form or other form acceptable to City’s Risk Manager providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $ 5,000,000 dollars per claim and $ 5,000,000 in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites.
01007.0005 962849.20 29
e. Builder’s Risk Insurance. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions or provisional limit provisions. The policy must includ e: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the bui ldings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the project; (4) ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub- limits sufficient to insure the full replacement value of any key equipment item; (6) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the project site or any staging area. The City and Developer shall each be included as Loss Payee for their respective insurable interest.
f. Marine Insurance. The insurance shall cover physical loss or damage to the materials, equipment, machinery, supplies and other items for incorporation or consumption in the Project occurring during transportation thereof to the Property or its vicinity, from warehouse to warehouse. Up to $40,000,000 each and every loss any one conveyance and/or interim storage location as per “storage” extension within the policy. From the commencement date of the first shipment of property to the Site until the completion of all shipments of property to the Site, including materials, equipment, machinery, spares, supplies and other items for the Plant and the Interfaces.
g. Commercial General and Professional Liability Insurance ; Contractors. Developer represents and warrants it will contract out all Project design work. Developer further represents and warrants that all of its contractors and consultants are and will continue to be, until completion of their respective work/services and for such period thereafter as may be reasonably required by the City’s Risk Manager, insured through their own Commercial General and Professional liability insurance policies appropriate to the relevant profession for all Project design work, with limits no less than (i) $2,000,000 per claim and in the aggregate for Professional liability, and (ii) $1,000,000 each occurrence (combined single limit for bodily injury and property damage) and $2,000,000 general aggregate for Commercial General liability . This coverage may be written on a “claims made” basis, and must include coverage for con tractual liability. The insurance required by this Agreement shall be applicable to claims based upon, arising out of or related to services performed under this Agreement. h. Other Insurance. Developer may procure and maintain any insurance not required by this Agreement, but all such insurance shall be subject to all of
01007.0005 962849.20 30
the provisions hereof pertaining to insurance and shall be for the benefit of City and Developer.
i. Contractors/Subcontractors. Developer shall ensure that all contractors and sub-contractors maintain the required minimum insurance coverages, or shall include the contractors and subcontractors under its insurance .
Notwithstanding the foregoing, the City’s Risk Manager may waive Professional Liability or Pollution Liability insurance requirements for a given subcontractor if the Risk Manager determines the subcontractor’s scope of work does not necessitate such insurance requirements.
9.2 Insurance Policy Form, Sufficiency, Content, and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed and admitted to do business by California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VIII or better, unless waived by City. All such policies shall be non - assessable and shall contain language, to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence of City or Developer that might otherwise result in the forfeiture of the insurance, (ii) the insurer waives the right of subrogation against City and against City ’s agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried by City; and (iv) the policies cannot be canceled except after thirty (30) days’ written notice by the insurer to City or City ’s designated representative. Developer shall furnish City with copies of all such policies promptly on receipt of them or with certificates evidencing the insurance. City shall be named as an additional insured on all policies of insurance required to be procured by the terms of this Agreement , except Workers’ Compensation and Professional Liability, and except for all insurance required by Developer’s contractors, both City and Developer shall be named as an additional insured .
Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. In the event the City ’s Risk Manager determines that the use, activities or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property under this Agreement creates an increased or decreased risk of loss to the City, Developer agrees that the minimum limits of the insurance policies required by Section 9.1 may be changed accordingly upon receipt of written notice from the City’s Risk Manager; provided that Developer shall have the right to appeal a determination of increased coverage to the City Council of City within ten (10) days of receipt of notice from the City’s Risk Manager.
9.3 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to City, in the manner required for notices, copies of certificates of all insurance policies together with endorsements required hereunder together with evidence satisfactory to City of payment required for procurement and maintena nce of each policy within the following time limits:
a. For insurance required above, within ninety (90) days after the Effective Date.
b. For any renewal or replacement of a policy already in existence, at least ten (10) days before the expiration or termination of the existing policy.
01007.0005 962849.20 31
c. If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish City with required proof that that insurance has been procured and is in force and paid for, such failure or refusal shall be a default hereunder.
9.4 Waiver of Subrogation. Developer agrees that it shall not make any claim against, or seek to recover from City or its agents, servants, or employees, for any loss or damage to Developer or to any person or property, except as specifically provided hereunder and Developer shall give notice to any insurance carrier of the foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to recovery against City, its agents and employees.
9.5 Broader Coverages and Higher Limits. Notwithstanding anything else herein to the contrary, if Developer maintains broader coverages and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverages and/or higher limits maintained by Developer.
10. MORTGAGEE PROTECTION.
10.1 The parties agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer ’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed, of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require ce rtain Agreement interpretations, modifications, and estoppel certificates and City agrees upon request, from time to time, to communicate and meet with Developer and representatives of such lenders to negotiate in good faith any such estoppel certificates and/or requests for interpretation or modification. Subject to compliance with applicable laws, City will not unreasonably withhold its consent to any such requested estoppel certificate, interpretation or modification provided City determines such estoppel certificate, interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Pr operty shall be entitled to the rights and privileges set forth in this Article
10. 10.2 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
10.3 The Mortgagee of any Mortgage or deed of trust encumbering the Property, or any part thereof, where Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer’s obligations under this Agreement.
10.4 If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Developer.
The Mortgagee shall have the right, but not the obligation, to cure the default during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days.
01007.0005 962849.20 32
10.5 Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the Mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
11. ASSIGNMENTS.
11.1 The experience, knowledge, capability and reputation of Developer, its principals, employees and affiliates were a substantial inducement for the City to enter into this Agreement. The Developer may sell, transfer, lease or assign this Agreement , the Property, or any part thereof (such sale, transfer, lease or assignment shall be referred to as an “Assignment”) with the prior written consent of the Director, which consent may not be unreasonably withheld, after providing reasonable documentation and evidence demonstrating that the person or entity to whom any of the rights or privileges granted herein are to be sold, transferred, leased, assigned, hypothecated, encumbered, merged, or consolidated, meets the following criteria: (i) the transferee has the financial strength and capability to perform its obligations under the Agreement, and (ii) reasonably satisfactory evidence that the transferee has the experience and expertise to operate the Project, including reasonably satisfactory evidence that the transferee has experience with operations and projects with a similar scale of this Project. The proposed transferee shall execute and deliver to the City an assumption agreement assuming Developer ’s Project obligations, which assumption agreement shall be in a form approved by the City Manager and City Attorney.
Notwithstanding the foregoing, if Developer should seek the Assignment prior to making the payments to City pursuant to Sections 3.1, 3.2 or 3.3, then Developer must make such payments to City prior to completion of the Assignment . Developer making these payments will be a condition precedent to the Director providing consent to the Assignment.
11.2 City Consideration of Requested Assignment. The City agrees that it will not unreasonably withhold, condition, or delay approval of a request for approval of an Assignment required pursuant to this Article 11, provided that:
a. Developer delivers written notice to the City requesting that approval prior to the completion of the Assignment (the “Consent Request”); and b. The Assignment is not completed until either (i) City has provided its written consent or (ii) sixty (60) days have passed after delivery by Developer to City of the Consent Request without the City having rejected the Consent Request in writing.
c. The Consent Request shall be accompanied by (i) a proposed draft of the Assignment and Assumption Agreement described in Section 11.3, in a form reasonably acceptable to the City Attorney and City Manager, and (ii) evidence regarding the proposed assignee’s development and/or operational qualifications and experience and its financial commitments and resources in sufficient detail to enable the City to evaluate the proposed assignee ’s ability to complete the Project.
11.3 Assignments Permitted Without City’s Consent. Notwithstanding any other provision of this Agreement, Assignments related to the following property conveyances and other transactions shall not require City consent:
01007.0005 962849.20 33
a. The granting of easements or permits to facilitate construction of the Project or any public improvements.
b. The granting of easements or permits for utility purposes. c. Transactions for financing purposes, including the grant of a deed of trust to secure the funds necessary, but not to exceed the amounts reasonably required, for land acquisition, construction, and/or permanent financing of any portion of the Project.
d. The acquisition of some or all of the Property by a Mortgagee in its capacity as a Mortgagee, such as through foreclosure or a deed in lieu of foreclosure. e. A sale or transfer resulting from, or in connection with, a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or otherwise, in which the ownership interests of a corporation are assigned directly or by operat ion of law to a person or persons, firm or corporation which acquires the control of the voting capital stock of such corporation or all or substantially all of the assets of such corporation. f. A sale or transfer between members of the same family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries consist primarily of family members of the trustor, or transfers to a corporation or partnership in which the family members or shareholders of the transferor own at least ten percent (10%) of the present equity ownership and/or at least fifty percent (50%) of the voting control of Developer.
g. If Developer is a trust, corporation, real estate investment trust, or partnership, a transfer of stock or other interests, provided there is no material change in the actual management and control of Developer. h. Transactions with any member, partner, officer, employee, or affiliate of Developer or any trust or family member, provided that, following the transaction, the management of Developer on the Effective Date shall, subject to normal and customary business practices and personnel changes, remain the primary Developer representative(s) for purposes of communication with the City.
11.4 Effect of Assignment. Unless otherwise stated within the Assignment, upon an Assignment:
a. The assignee shall be liable for the performance of all remaining obligations of Developer with respect to those portions of the Property which are transferred (the “ Transferred Property ”), but shall have no obligations with respect to any portions of the Property not conveyed (the “ Retained Property”).
01007.0005 962849.20 34
b. The owner of the Retained Property shall be liable for the performance of all obligations of Developer with respect to the Retained Property, but shall have no further obligations with respect to the Transferred Property. c. The Assignee’s exercise, use, and enjoyment of the Transferred Property shall be subject to the terms of this Agreement to the same extent as if the Assignee were the Developer.
12. AMENDMENT AND MODIFICATION.
12.1 Initiation of Amendment. Either Party may propose an amendment to this Agreement or the Project Development Approvals.
12.2 Procedure and Requirements for Amendments to Development Agreement. The procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance as set forth in Government Code Section 65867 and 65868. City will process any amendment to this Agreement consistent with state law and will hold public hearings thereon if so required by state law, and the Parties expressly agree nothing herein is intended to deprive any party or person of due process of law. Except as expressly set forth in any such amendment, an amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations of either party under this Agreement.
12.3 Consent. Except as expressly provided in this Agreement, no cancellation of or amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the parties hereto and recorded in the Official Records of Los Angeles County.
12.4 Administrative Minor Project Modifications. Notwithstanding any other provision and/or Condition of Approval contained in any Project Development Approvals, minor modifications to the Project Development Approvals, the Subsequent Development Approvals, and/or the Development Plan shall be made ministerially, with the approval of the Director. The determination of whether a requested or proposed modification constitutes a minor modification shall be made by the Director in his or her sole discretion, except that minor modifications shall not include any modifications that the Director determines extend beyond the intent of the original approval, and modifications meeting any of the following criteria shall not be deemed to constitute minor modifications: (i) modifications that change the proposed uses analyzed in the CatEx Memo; (ii) modifications that increase the total amount of battery enclosure square footage within the Project by more than ten percent (10%); (iii) modifications that increase building/structure heights within the Property in comparison to what was identified on the Development Plan; (iv) modifications that substantially deviate from the design, location or specifications of the fiber optic cable lines as set forth in the Development Plan or Exhibit “C”; or (v) other modifications that involve any deviation of architectural design or details that is not in substantial conformance with the Project Development Approvals.
13. MISCELLANEOUS PROVISIONS.
13.1 Recordation. The City Clerk shall cause a copy of this Agreement to be recorded against the Property with the County Recorder within ten (10) calendar days after the
01007.0005 962849.20 35
Execution Date. The failure of the City to sign and/or record this Agreement shall not affect the validity of this Agreement.
13.2 Notices. Notices and correspondence required or permitted by this Agreement shall be in writing and either personally delivered or sent by registered, certified, or overnight mail or delivery service , or email (for attorney copies if specified below) . Notices shall be deemed received upon personal delivery or on the second business day after registered, certified, or overnight mailing or delivery , or email if such email notice is acknowledged as received by the receiving party. Notices shall be addressed as follows:
To City: City of Carson
701 East Carson Street
Carson, California 90745
Attn: Planning Manager
With copy to: Aleshire & Wynder
1 Park Plaza, Suite 1000
Irvine, CA 92614
Fax: 949-223-1180
Attn: Sunny Soltani
To Developer: VESI 27 LLC
6884 Sierra Center Parkway
Reno, NV 89511
With copy to: Legal Department
[email protected]
A Party may change its address by giving written n otice to the other Party. Thereafter, Notices shall be addressed and transmitted to the new address.
13.3 Estoppel Certificates. Either Party (or a Mortgagee) may at any time deliver written notice to the other Party requesting an Estoppel Certificate stating:
a. The Agreement is in full force and effect and is a binding obligation of the Parties;
b. The Agreement has not been amended or modified or, if so amended, identifying the amendments; and
c. There are no existing defaults under the Agreement to the actual knowledge of the Party signing the Estoppel Certificate.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The City Manager may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by assignees and Mortgagees.
01007.0005 962849.20 36
13.4 Project as a Private Undertaking. It is specifically understood and agreed by the Parties that the Project is a private development, that neither Party is acting as the agent of the other in any respect, and that each Party is an independent contracting entity with respect to this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of property owned by a private party. City agrees that by its approval of, and entering into, this Agreement that it is not taking any action which would transform this private Development into a “public work” project, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer’s private project into a public work project, it being understood that this Agreement is entered into by City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, and that City is receiving by and through this Agreement t he full measure of benefit in exchange for the burdens placed on Developer by this Agreement, including but not limited to Developer’s obligation to provide the public improvements set forth herein.
13.5 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain.
13.513.6 Survival. Without limitation as to Section 8.6 and any other provision where the context so indicates, the provisions set forth in Sections 3.2, 3.5, 3.7, 3.8, 3.13, 3.14, 3.16 and 3.17 of this Agreement shall survive expiration or sooner termination of this Agreement for any reason other than a default by City.
13.613.7 Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter of this Agreement. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
13.713.8 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement.
13.813.9 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.
13.913.10 Covenant Not To Sue. The parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other party to this Agreement, in law or in equ ity, or based on any allegation or assertion in any such action, that this Agreement or any te rm hereof is void, invalid, or unenforceable.
13.1013.11 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes, and other labor difficulties beyond the Party ’s control, government regulations, pandemics, government-
01007.0005 962849.20 37
ordered quarantine, court actions (such as restraining orders or injunctions), or other causes beyond the Party’s reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of the impacts on the Project of each such event.
13.1113.12 Waiver. All waivers of performance must be in a writing signed by the Party granting the waiver. Failure by a Party to insist upon the strict performance of any provision of this Agreement shall not be a waiver of future performance of the same or any other provision of this Agreement.
13.1213.13 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
13.1313.14 Governing Law and Venue. This Agreement shall be governed and interpreted in accordance with California law, with venue for any litigation concerning this Agreement in Los Angeles, California.
13.1413.15 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party or in favor of City shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
13.1513.16 Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) 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 this Agreement does not violate any provision of any other agreement to which such party is bound.
13.1613.17 Attorneys’ Fees. If either party to this Agreement is required to initiate or defend litigation against the other party, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and, in addition, a party entitled to attorney ’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to a final judgment.
13.1713.18 Recitals. The recitals in this Agreement constitute part of this Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Agreement.
13.1813.19 No Brokers. City and Developer represent and warrant to the other that neither has employed any broker and/or finder to represent its interest in this transaction. Each party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorney ’s fees) in any manner connected with a claim asserted by any individual or entity for any commission or
01007.0005 962849.20 38
finder’s fee in connection with this Agreement arising out of agreements by the indemnifying party to pay any commission or finder’s fee.
13.1913.20 Joint and Several Liability. In the event Developer should sell, transfer, lease or assign this Agreement, the Property, or any part thereof, Developer shall bear ultimate responsibility for all obligations, conditions, and restrictions set forth under this Agreement, it being understood that both Developer and any transferee, assignee, or lessee shall be jointly and severally liable.
13.2013.21 Compliance with Laws. Developer must comply with all federal, state and local laws and regulations, including the City’s Municipal Code.
13.2113.22 Warranty & Representation of Non -Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial in terest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he i s directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Developer warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, o r other thing of value as a result or consequence of obtaining or being awarded any agreement. Developer further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Developer is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
13.2213.23 Counterparts. This Agreement may be executed by the Parties in counterparts, which together shall have the same effect as if each of the Parties had executed the same instrument.
[SIGNATURES ON FOLLOWING PAGE(S)]
01007.0005 962849.20 39
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first set forth above.
CITY
CITY OF CARSON a municipal corporation
Lula Davis-Holmes, Mayor
ATTEST
Dr. Khaleah K. Bradshaw, City Clerk
APPROVED AS TO FORM
ALESHIRE & WYNDER, LLP
Sunny K. Soltani, City Attorney
[brj]
DEVELOPER
VESI 27 LLC, a Delaware limited liability
company
By:
Name:
Title:
By:
Name:
Title:
DEVELOPER SHALL PROVIDE CITY WITH COPIES OF APPROPRIATE DOCUMENTS EVIDENCING AUTHORITY OF SIGNATORIES TO EXECUTE AND BIND DEVELOPER. DEVELOPER’S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER’S BUSINESS ENTITY.
01007.0005 962849.20 40
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2026, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same i n his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01007.0005 962849.20 41
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2026, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same i n his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
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NUMBER OF PAGES
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SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01007.0005 962849.20 A-1
EXHIBIT “A”
PROPERTY LEGAL DESCRIPTION
The land referred to herein below is situated in the City of Carson in the County of Los Angeles, State of California, and is described as follows:
The westerly 750.97 feet of Lot 119 of Tract 4671, in the City of Carson, County of Los Angeles, State of California, as per map recorded in Book 56, Pages 30 and 31 of Maps, in the office of the County Recorder of said County.
Except therefrom the westerly 222.97 feet thereof.
Also except therefrom the easterly 100 feet of the westerly 322.97 feet as per final judgment, Case No 274,177 recorded in Book 12339, Page 97 of official records in said County.
APN: 7339-014-009
01007.0005 962849.20 B-1
EXHIBIT “B”
DEPICTION OF THE PROPERTY
01007.0005 962849.20 B-2
01007.0005 962849.20 B-3
EXHIBIT “C”
FIBER OPTIC CABLE LINE ROUTES
CITY OF CARSON 701 East Carson Street
Report to Honorable Mayor and City Council
Wednesday, May 20, 2026, 5:00 PM
DISCUSSION 37. To: Honorable Mayor and City Council From: Dr. Arlington Rodgers, Director of Public Works PW Engineering Subject: FISCAL YEAR 2026-2027 BUDGET WORKSHOP NO. 2: CAPITAL IMPROVEMENT PROGRAM(CIP) (CITY COUNCIL) I. SUMMARY
This is the second planned Budget Workshop being presented to the City Council prior to consideration and adoption of the Fiscal Year (FY) 2026-2027 Operating Budget on June 16, 2026. The first Budget Workshop was held on May 5, 2026, during which City staff presented information regarding the City’s projected revenues, anticipated personnel costs, and proposed departmental operating budgets for FY 2026-2027. This second workshop focuses on the City’s proposed Capital Improvement Program (CIP). The CIP is the City’s long-range planning document for major infrastructure and public improvement projects. It identifies proposed funding allocations for projects such as streets, traffic signals, parks, facilities, landscaping, public safety improvements, and other community infrastructure needs planned for the upcoming fiscal year and future years. The purpose of this workshop is to provide the City Council and the public with an overview of the proposed FY 2026-2027 CIP plan, discuss project priorities and funding strategies, and receive feedback prior to final budget adoption.
II. RECOMMENDATION
TAKE the following actions:
1. CONDUCT a Budget Workshop to review and discuss the proposed Fiscal Year 2026-2027 Capital Improvement Program (CIP) Five-Year Plan; and,
2. PROVIDE direction to staff regarding the projects, funding priorities, and proposed improvements to be included in the Fiscal Year 2026-2027 Budget document.
III. ALTERNATIVES
TAKE another action the City Council deems appropriate consistent with the requirement of the law.
IV. BACKGROUND
The City’s Capital Improvement Program (CIP) serves as the City’s long-range planning document for major infrastructure and public improvement projects over the next five fiscal years, from Fiscal Year (FY) 2026-2027 through FY 2030-2031. The CIP helps the City plan, prioritize, fund, and schedule projects that improve public infrastructure, enhance community facilities, support public safety, and maintain essential City assets. Each year, the Public Works Department works collaboratively with all City departments to identify proposed capital projects and determine the scope, purpose, estimated costs, and anticipated schedules for each project. This process allows the City to evaluate current infrastructure needs, operational priorities, regulatory requirements, and long- term community goals when developing the annual CIP plan.
Projects proposed for FY 2026-2027 were evaluated based on several important factors, including protection of public health and safety, compliance with state and federal regulations, environmental benefits, operational efficiency, community needs, and alignment with the strategic priorities established by the Mayor and City Council.
Staff also considered available grant opportunities and other outside funding sources to reduce reliance on the City’s General Fund whenever possible. The City’s General Fund alone is not sufficient to fully fund all requested infrastructure improvements and community projects. As a result, staff has actively pursued grant funding and outside financing opportunities to support major capital investments throughout the City. Currently, staff has secured more than $45 million in grant funding from agencies such as California Department of Transportation and Los Angeles County Metropolitan Transportation Authority for roadway, transportation, and bicycle improvement projects. In addition, the Public Works Waste Division has successfully obtained multiple State grants to support waste management, recycling, and environmental compliance programs.
Although many grants are transportation or infrastructure focused, Public Works provides project management, engineering, design, and construction oversight for capital projects citywide, including parks, facilities, traffic improvements, stormwater projects, and technology infrastructure. Staff continues to aggressively pursue grant funding and outside partnerships to help maximize improvements while minimizing impacts to the General Fund.
The funding source used for each project generally depends on the type of project and its eligibility requirements.
The City receives capital project funding from a variety of local, regional, state, and federal sources, including gas taxes, Senate Bill 1 (SB1) roadway funding, Measure R and Measure M transportation sales tax funds, CalRecycle grants, Development Impact Fees (fees collected from new development projects), Quimby funds for park development, Community Development Block Grant (CDBG) funds, Measure W stormwater funding, State Office of Grants and Local Serices (OGALS) funding, the 2024 Lease Revenue Bond Program, and other special revenue sources. Public Works is also focused on investing in projects that help reduce long-term maintenance and operational costs, improve infrastructure reliability, enhance public safety, and improve overall quality of life for residents and businesses.
The proposed FY 2026-2027 CIP includes approximately $208.9 million in planned capital investments across 63 projects citywide. The largest category of proposed investment is roadway improvements, totaling approximately $74.8 million, which represents approximately 36% of the overall CIP program. These roadway projects include street rehabilitation, transportation improvements, traffic operations, and roadway safety enhancements funded through a combination of regional, state, federal, and local funding sources.
The proposed FY 2026-2027 CIP funding sources are summarized below:
Funding Source Proposed
Amount
Community Broadband Capital
Enterprise Fund $61,250,000.00
General Fund $30,000,000.00
Reimbursable Grants$45,402,962.05
Special Revenue / Entitlement
Funding $43,832,710.48
2024 Lease Revenue Bond$28,258,481.25
On-Call Operating Budget$195,000.00
Total FY 2026-2027 CIP
Estimate $208,939,153.78
The proposed FY 2026-2027 CIP project categories are summarized below:
Project
Type
Project
Count
FY 2026-2027
Estimate
Percentage of
Total CIP
Bikeways5 $11,826,106.055.66%
Buildings8 $4,947,767.492.37%
Parks 12 $19,043,102.009.11%
Roadways14 $74,847,464.1335.82%
Safety 3 $0.00 0.00%
Stormwater4 $9,157,435.394.38%
Technology2 $61,250,000.0029.31%
Traffic 14 $27,466,089.7213.15%
Trees 1 $401,189.000.19%
Grand
Total 63 $208,939,153.78100.00%
V. FISCAL IMPACT
Direction and feedback provided by the City Council during this Budget Workshop will help guide preparation of the proposed Fiscal Year (FY) 2026-2027 Operating Budget and final Capital Improvement Program (CIP) plan. The proposed FY 2026-2027 CIP is estimated at approximately $208 million and includes a combination of local, regional, state, federal, and enterprise funding sources to support infrastructure and public improvement projects throughout the City. Of the total proposed funding, approximately $45 million is anticipated to come from reimbursable grant funds, approximately $44 million from special revenue sources, approximately $28 million from the 2024 Lease Revenue Bond Program, approximately $61 million from the Community Broadband Capital Enterprise Fund, and approximately $30 million from the City’s General Fund reserves. An additional proposed $195,000 would come from departmental operating budget funds.
The operating budget portion primarily relates to design and engineering services being performed by on-call professional consultants for certain capital projects. Although these services are funded through departmental operating budgets rather than traditional CIP construction accounts, staff determined it was important to include them within the overall CIP program because portions of this work may qualify toward the City’s required local funding match for grant-funded projects. Local matching contributions are often required by grant agencies as part of the City’s participation in state and federal funding programs.
A comprehensive exhibit accompanies this report and provides detailed information regarding the proposed CIP plan, including project descriptions, estimated costs, funding sources, and project schedules.
VI. EXHIBITS
1. Proposed FY 2026-2027 CIP Plan
Attachments
Exhibit 1. Proposed FY 2026-2027 CIP Plan
FY 26-27 CIP Draft
PHASE PROJ # TYPE PROJECT NAME DESCRIPTION Total Project Estimate FY26-27 Estimate FY27-28 Estimate FY28-29 Estimate FY29-30 Estimate FY30-31 Estimate Funding Source 1 Construction PW0675 Roadways Sepulveda Blvd -Widening The project involves widening and improvement of the roadway and bridge along Sepulveda Blvd to provide three lanes of traffic in both directions, construction of new sidewalk, relocation of existing electrical poles, and modification of existing traffic signal.
25,000,000.00$ -$ -$ -$ -$ -$ COOP - Fund 284 1 Construction PW0675 Roadways Sepulveda Blvd -Widening The project involves widening and improvement of the roadway and bridge along Sepulveda Blvd to provide three lanes of traffic in both directions, construction of new sidewalk, relocation of existing electrical poles, and modification of existing traffic signal.
-$ 12,897,999.00$ -$ -$ -$ -$ Measure M PS&E - Fund 283
1 Construction PW0675 Roadways Sepulveda Blvd -Widening The project involves widening and improvement of the roadway and bridge along Sepulveda Blvd to provide three lanes of traffic in both directions, construction of new sidewalk, relocation of existing electrical poles, and modification of existing traffic signal.
-$ -$ -$ -$ -$ -$ General Fund 1 Construction PW0675 Roadways Sepulveda Blvd -Widening The project involves widening and improvement of the roadway and bridge along Sepulveda Blvd to provide three lanes of traffic in both directions, construction of new sidewalk, relocation of existing electrical poles, and modification of existing traffic signal.
-$ -$ 11,472,040.00$ -$ -$ -$ Measure M Metro Grant
1 Construction PW1368 Parks Carriage Crest Park Expansion and Improvement Project
Refurbish main building facility and develop the additional 10 acres leased from Sanitation District. The project will include extending existing parking lot, adding new parking lot, Dog park, and remote restroom on South East end of property. New playground, outdoor fitness equipment area, new athletic ball fields with Security lights, upgrades to existing basketball courts, and general site improvements including walking/jogging loop (Prop 68-$13M) +($3.3M General Fund) 25,372,546.58$ -$ -$ -$ -$ -$ OGALS 1 Construction PW1368 Parks Carriage Crest Park Expansion and Improvement Project
Refurbish main building facility and develop the additional 10 acres leased from Sanitation District. The project will include extending existing parking lot, adding new parking lot, Dog park, and remote restroom on South East end of property. New playground, outdoor fitness equipment area, new athletic ball fields with Security lights, upgrades to existing basketball courts, and general site improvements including walking/jogging loop (Prop 68-$13M) +($3.3M General Fund) -$ 3,000,000.00$ -$ -$ -$ -$ 2024 Lease Revenue Bond
1 Construction PW1368 Parks Carriage Crest Park Expansion and Improvement Project
Refurbish main building facility and develop the additional 10 acres leased from Sanitation District. The project will include extending existing parking lot, adding new parking lot, Dog park, and remote restroom on South East end of property. New playground, outdoor fitness equipment area, new athletic ball fields with Security lights, upgrades to existing basketball courts, and general site improvements including walking/jogging loop (Prop 68-$13M) +($3.3M General Fund) -$ -$ -$ -$ -$ -$ DIF Park & Related Facilities
(4942)
1 Construction PW1393-5 Roadways Avalon Boulevard - from Lomita Blvd to 223rd Street
Roadway Reconstruction
Avalon Boulevard Reconstruction - from 223rd Street to Lomita Boulevard - Reconstruction and rehabilitation of existing roadway pavement to improve roadway conditions and ride quality, extend pavement life, and enhance traffic operations and public safety. The work primarily includes asphalt pavement reconstruction, grinding of deteriorated pavement surfaces, asphalt concrete overlay, localized full-depth pavement repairs, and replacement of failed pavement sections. Additional improvements may include adjustment of utility manholes and valve covers to grade, pavement striping and markings. (Combined Projects PW1620, 1393-5, and 1411-5) 7,000,000.00$ 7,000,000.00$ -$ -$ -$ -$ General Fund 3 Maintenance PW1396 Roadways Dominguez Street Roadway
Reconstruction
Dominguez Street from Wilmington to Alameda. The project includes asphalt pavement grind and overlay, local removal and replacement of roadway section. It also includes concrete reconstruction, tree removal and replacement, repair of damage sidewalk, driveway approaches, curbs and gutter, access ramps.
3,120,000.00$ -$ 3,120,000.00$ -$ -$ -$ None
FY 26-27 CIP Draft
PHASE PROJ # TYPE PROJECT NAME DESCRIPTION Total Project Estimate FY26-27 Estimate FY27-28 Estimate FY28-29 Estimate FY29-30 Estimate FY30-31 Estimate Funding Source 1 Construction PW1411-5 Roadways Avalon Boulevard - from Lomit Blvd to 223rd Street
Concrete Replacement
Avalon Boulevard Reconstruction - from 223rd Street to Lomita Boulevard - Rremoval and replacement of deteriorated concrete improvements within the roadway area to restore structural integrity and improve public safety. The work includes demolition and reconstruction of damaged concrete pavement, curb and gutter, cross gutters, sidewalks, driveway approaches, and other miscellaneous concrete improvements. The project also includes removal and disposal of failed concrete sections, subgrade preparation, and placement of new concrete improvements. (Combined Projects PW1620, 1393-5, and 1411-5)
791,314.00$ 791,314.00$ -$ -$ -$ -$ General Fund 3 Maintenance PW1413-5 Roadways Annual Slurry Seal & Crack Seal Program (Preventative
Maintenance)
Annual preventative maintenace using a rubberized slurry seal on city streets - 900,000.00$ -$ 900,000.00$ -$ -$ -$ None 3 Maintenance PW1416 Parks **Calas Park & Fosia Park
Roof Repair
Repair and replace roofing material at Calas (Complete) and Foisia Park 666,078.00$ 500,000.00$ -$ -$ -$ -$ Community Facilities District
(CFD)
2 Design PW1451 Bikeways Bike lane installation on
Avalon Boulevard, Central
Avenue, Del Amo Boulevard,
223rd Street, Main Street,
Victoria Street, and Carson
Street
Design and construction of bike lanes on Avalon Boulevard, Central Avenue, Del Amo Boulevard, 223rd Street, Main Street, Victoria Street, and Carson Street -$ -$ -$ -$ -$ -$ Metro Measure M Grant2 Design PW1451 Bikeways Bike lane installation on Avalon Boulevard, Central
Avenue, Del Amo Boulevard,
223rd Street, Main Street,
Victoria Street, and Carson
Street
Design and construction of bike lanes on Avalon Boulevard, Central Avenue, Del Amo Boulevard, 223rd Street, Main Street, Victoria Street, and Carson Street 4,264,525.00$ -$ 1,567,800.00$ -$ -$ -$ HSIP 2 Design PW1451 Bikeways Bike lane installation on
Avalon Boulevard, Central
Avenue, Del Amo Boulevard,
223rd Street, Main Street,
Victoria Street, and Carson
Street
Design and construction of bike lanes on Avalon Boulevard, Central Avenue, Del Amo Boulevard, 223rd Street, Main Street, Victoria Street, and Carson Street -$ -$ 2,696,725.00$ -$ -$ -$ General Fund 2 Design PW1451 Bikeways Bike lane installation on
Avalon Boulevard, Central
Avenue, Del Amo Boulevard,
223rd Street, Main Street,
Victoria Street, and Carson
Street
Design and construction of bike lanes on Avalon Boulevard, Central Avenue, Del Amo Boulevard, 223rd Street, Main Street, Victoria Street, and Carson Street -$ -$ -$ -$ -$ -$ DIF Transportation
(4945)
2 Design PW1452 Bikeways Bike lane installation and
median modifications on
Figueroa Street, Main Street,
223rd Street, and Avalon
Boulevard.
Design and construction of bike lanes on Figueroa Street, Main Street, 223rd Street, and Avalon Boulevard including median modification to accommodate bike lane buffer zone
20,321,562.00$ 8,727,481.00$ 8,727,481.00$ -$ -$ -$ Metro Measure M Grant
2 Design PW1452 Bikeways Bike lane installation and
median modifications on
Figueroa Street, Main Street,
223rd Street, and Avalon
Boulevard.
Design and construction of bike lanes on Figueroa Street, Main Street, 223rd Street, and Avalon Boulevard including median modification to accommodate bike lane buffer zone
-$ -$ -$ -$ -$ -$ HSIP 2 Design PW1452 Bikeways Bike lane installation and
median modifications on
Figueroa Street, Main Street,
223rd Street, and Avalon
Boulevard.
Design and construction of bike lanes on Figueroa Street, Main Street, 223rd Street, and Avalon Boulevard including median modification to accommodate bike lane buffer zone
-$ -$ 2,866,600.00$ -$ -$ -$ General Fund 2 Design PW1452 Bikeways Bike lane installation and
median modifications on
Figueroa Street, Main Street,
223rd Street, and Avalon
Boulevard.
Design and construction of bike lanes on Figueroa Street, Main Street, 223rd Street, and Avalon Boulevard including median modification to accommodate bike lane buffer zone
-$ -$ -$ -$ -$ -$ DIF Transportation
(4945)
3 Maintenance PW1484 Parks Dugout Cover Installation at 9 Parks
Repair and or replace dugout roof material (Calas, Del Amo, Dolphin, Dominguez, Hemingway, Stevenson, Veterans)
375,000.00$ -$ 375,000.00$ -$ -$ -$ General Fund
FY 26-27 CIP Draft
PHASE PROJ # TYPE PROJECT NAME DESCRIPTION Total Project Estimate FY26-27 Estimate FY27-28 Estimate FY28-29 Estimate FY29-30 Estimate FY30-31 Estimate Funding Source 2 Design PW1490 Bikeways Dominguez Channel Bike Path
I
Bike path installation along Dominguez Channel from Main St to Avalon Blvd. Its construction also includes the bridge over the ravine to continue the alignment to Avalon Boulevard
12,557,174.00$ 500,000.00$ 242,518.00$ -$ -$ -$ MTA Grant 2 Design PW1490 Bikeways Dominguez Channel Bike Path
I
Bike path installation along Dominguez Channel from Main St to Avalon Blvd. Its construction also includes the bridge over the ravine to continue the alignment to Avalon Boulevard
-$ 45,000.00$ -$ -$ -$ -$ General Fund 2 Design PW1490 Bikeways Dominguez Channel Bike Path
I
Bike path installation along Dominguez Channel from Main St to Avalon Blvd. Its construction also includes the bridge over the ravine to continue the alignment to Avalon Boulevard
-$ -$ 11,800,000.00$ -$ -$ -$ None 1 Construction PW1515 Stormwater Carson Stormwater Capture Facility at Carriage Crest Park
Compliance Project - Stormwater chambers under baseball field to divert stormwater into LA County Sanitation District's Regional & Water Pollution Control Plant 22,110,713.36$ -$ -$ -$ -$ -$ Measure W 2 Design PW1534 Bikeways Active Transporation
Program - Santa Fe Bike Lane
Design and construction 1.5 mile bike lane along Santa Fe Ave between Del Amo Bl and Warnock Wy. Upgrade of curb ramps citywide.
3,601,000.00$ 1,500,000.00$ 1,951,000.00$ -$ -$ -$ Caltrans 2 Design PW1534 Bikeways Active Transporation
Program - Santa Fe Bike Lane
Design and construction 1.5 mile bike lane along Santa Fe Ave between Del Amo Bl and Warnock Wy. Upgrade of curb ramps citywide.
-$ -$ -$ -$ -$ General Fund 2 Design PW1600 Bikeways Dominguez Channel Bike Path
II
Bike path installation along Dominguez Channel from Avalon to Carson St 5,423,682.00$ 500,000.00$ 497,564.00$ -$ -$ -$ MTA Grant 2 Design PW1600 Bikeways Dominguez Channel Bike Path
II
Bike path installation along Dominguez Channel from Avalon to Carson St -$ -$ -$ -$ -$ -$ TDA Article 3 2 Design PW1600 Bikeways Dominguez Channel Bike Path
II
Bike path installation along Dominguez Channel from Avalon to Carson St -$ -$ 4,430,514.00$ -$ -$ -$ None 2 Design PW1608 Roadways MLK Blvd Improvements Reconstruction of Martin Luther King Blvd. The project includes removal and replacement of existing native soil and aggregate base to reconstruct roadway section per current City Standard.
6,000,000.00$ -$ 6,000,000.00$ -$ -$ -$ None 1 Construction PW1610 Parks Foisia Park Design and
Construction
Design - Various upgrades to park facility. Competitive Grant and the award of funding will be available withing the next 3-4 months. Prop 68 1 12,800,000.00$ -$ -$ -$ -$ -$ OGALS 1 Construction PW1610 Parks Foisia Park Design and
Construction
Design - Various upgrades to park facility. Competitive Grant and the award of funding will be available withing the next 3-4 months. Prop 68 1 -$ -$ -$ -$ -$ -$ 2024 Lease Revenue Bond
1 Construction PW1610 Parks Foisia Park Design and
Construction
Design - Various upgrades to park facility. Competitive Grant and the award of funding will be available withing the next 3-4 months. Prop 68 1 -$ -$ -$ -$ -$ -$ General Fund 1 Construction PW1610 Parks Foisia Park Design and
Construction
Design - Various upgrades to park facility. Competitive Grant and the award of funding will be available withing the next 3-4 months. Prop 68 1 -$ -$ -$ -$ -$ -$ DIF Park & Related Facilities
(4942)
2 Design PW1612 Traffic Traffic Signal Installation-
Broadway and Griffith
Traffic signal installation at Broadway and Griffith 800,000.00$ -$ -$ -$ -$ -$ DIF Traffic (4941) 2 Design PW1612 Traffic Traffic Signal Installation-
Broadway and Griffith
Traffic signal installation at Broadway and Griffith -$ -$ 800,000.00$ -$ -$ -$ None 2 Design PW1613 Traffic Traffic Signal Installation -
Main St at Lenardo Dr
Traffic signal installation at intersection - Main St and Lenardo Dr 400,000.00$ -$ -$ -$ -$ -$ Measure MR-MM Bonds