REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT ("Agreement") is between the CITY OF GONZALES, a political subdivision of the State of California, referred to herein as ("CITY"), and TAP Agricultural Partners, LLC, a California limited liability company, referred to herein as (“TAP”) all of whom shall collectively be referred to herein as (the "PARTIES"), and is made with reference to the following:
Recitals
The PROJECT: TAP Agricultural Partners, LLC, has approached the CITY to participate in furthering a development interest at Heavenly Valley Ranch for a Renewable Energy Project and green agroecology business services to the Salinas Valley, in the vicinity of the City of Gonzales.
Specifically, the proposed Project will be developed in accordance with the plans provided to the CITY by TAP, which are subject to change by TAP in TAP’s discretion. The business proposal is diverse and includes several components and phases. The primary components and phases of the project being explored include:
Phase I
• Recognizing PG&E's limited supply of power available and to determine current demand and additional demand for future projects; and
• Proposing a 90 MW substation on Heavenly Valley property; and • Expanding on opportunities for energy production at the Gonzales Landfill working in partnership with Salinas Valley Solid Waste Authority (SVSWA); and • How best to meet the goals of California Senate Bill SB1383 to implementstatewide organic waste recycling and surplus food recovery; and
• Present organic processing at Johnson Canyon and Salinas Valley biogas producing renewable electricity.
• Lead Agency Suggestion by TAP: The Salinas Valley Solid Waste Authority (SVSWA) Phase II
• Generating solar renewable energy on 127 acres; and
• An additional 10 MV of Renewable Natural Gas Generation (RNG) • Establish a Battery Energy Storage System (BESS) facility; and • Construction and financing of a 10-acre PG&E Substation. • Lead Agency Suggestion by TAP: The County of Monterey.
The Project request from TAP includes a request of how the City of Gonzales could support this Project. Asks of the City of Gonzales include:
• Authorize staff time to pursue this opportunity; and
• Establish a Reimbursement Agreement with the City to be funded by the TAP Agricultural Partners, LLC (this document); and
• Investigate the status, charter and authority of the Gonzales Electrical Authority; and • Engage the City Attorney and Outside Counsel Opinion as may be necessary. (The PROJECT)
A. The Location: The Heavenly Valley Ranch includes approximately 530 acres in the following identified Assessor’s Parcel Numbers east of the City of Gonzales in the Monterey County unincorporated areas:
• APN: 123-041-025 70.00 acres +/-
• APN: 223-071-003 127.45 acres +/-
• APN: 223-074-012 73.61 acres +/-
• APN: 223-074-007 71.67 acres +/-
• APN: 223-071-006 22.92 acres +/-
• APN: 223-071-008 6.63 acres +/-
• APN: 223-071-014 7.60 acres +/-
• APN: 223-071-015 5.13 acres +/-
• APN: 223-071-016 6.50 acres +/-
• APN: 223-041-040 38.25 acres +/-
• APN: 223-041-041 39.75 acres +/-
• APN: 223-041-039 40.12 acres +/-
• APN: 223-041-042 20.36 acres +/-
Sum of parcel acreages 529.99 acres +/-
B. CITY charges application processing fees for all development project proposals, and other development related agreements and entitlements in order to recover CITY costs. It is impractical to set a total fixed cost to process project requests due to variation in size and complexity, reports needed and related CITY costs. Therefore, such projects are to be processed on a time-and materials basis with all costs to be borne by the applicant/developer. The applicant/developer for a development project request is required to enter into a Reimbursement Agreement and submit a Reimbursement Deposit, hereinafter defined, prior to CITY undertaking any work on the application.
IT IS THEREFORE AGREED, AS FOLLOWS:
1. Reimbursement for CityCosts.
TAP agrees to reimburse the CITY for all reasonably necessary direct, indirect, and overhead costs, including staff, planning, engineering, legal, environmental, translation and inspection costs, and any fees consistent with adopted City fee schedules, as applicable ("Reimbursable Expenses"), in connection with the following scope of work (each of which shall be itemized by cost and task) and subject to the Cap (as defined below), related to the following scope of work (each of which shall require the prior written approval of TAP):
(a) The use of outside consultants when deemed necessary byCITYfor the preparation of Project-related studies and reports, staff reports and/or general assistance.
Notwithstanding the foregoing, prior to the CITY retaining the services of outside consultants for the purpose of preparing Project-related studies and reports,CITYshall provide TAP with an itemized written proposal from the outside consultant which includes the proposed cost to perform the services identified therein. TAP shall have the right to review and comment upon all such proposals, and CITY shall take such comments into consideration before entering into any agreement for the desired service; and
(b)Working with TAP, and their Agents, to do all things reasonable and necessary to facilitate governmental approvals necessary for TAP to commence construction and development of the Project on the TAP Property, in accordance with the primary components and phases being explored for the Project. . (c) Together, Sections (a)-(c) shall be referred to as the "CITY Work".
2. Reimbursement Deposit.
TAP has deposited, or will deposit upon execution of this Agreement, with the CITY the sum of Twenty-Five Thousand Dollars ($15,000.00) ("Reimbursement Deposit"). ·The Reimbursement Deposit shall be hel1d by CITY in a segregated account and applied by CITY to the payment of all Reimbursable Expenses associated with the Project as referenced in Paragraph l, as they accrue. TAP acknowledges that costs associated with CITY Work may exceed the Reimbursement Deposit. The CITY agrees to keep a detailed account of all disbursements from the Reimbursement Deposit and will provide to TAP a detailed statement accounting for charges being paid out of the deposited funds on a monthly basis. Within ten (10) working days after the completion of all CITY Work contemplated by this Agreement, the CITY will return to TAP, without interest, all fund remaining on deposit after payment of all Reimbursable Expenses. If at any time the Reimbursement Deposit is reduced to Five Thousand ($5,000) or less, the CITY shall immediately notify TAP in writing, and TAP shall, within thirty (30) working days after receipt of a written request from the CITY, make an additional deposit of funds sufficient to restore said balance to the amount originally deposited ($15,000), or to such lesser amount as may be specified in said written request from the CITY.
The PARTIES understand that it is difficult to estimate the total cost to the City to process the Project at this time; therefore, in order to maintain fiscal accountability, in addition to maintaining a detailed accounting and keeping the funds in a segregated account, a reimbursement cap of $25,000 (“Cap”) is established. Within $10,000 of reaching the reimbursement Cap, both parties will discuss and attempt to agree on any additional work and costs before exceeding the Cap, and if no agreement can be reached, either party may terminate this Agreement on five (5) days’ notice.
TAP further agrees that non-payment for processing and/or deposits entitles the CITY to discontinue the CITY Work. Interest will accrue on all sums unpaid thirty (30) days after billing at the maximum legal rate, and the CITY is entitled to recover its costs, including attorney's fees, in collecting unpaid accounts.
The PARTIES acknowledge that deposits to the Reimbursement Deposit is not a "source of income" within the meaning of the California Political Reform Act. (Government Code Section 87102.6.)
3. Nature of Commitments.
Execution of this Agreement shall in no way be deemed a covenant, promise or commitment by either the CITY or TAP to enter into any subsequent Project-related agreement or to any specific Project-related obligation(s). Additionally, CITY makes no representations, promises or guarantees with respect to the approval of any application or agreement generated pursuant to this Agreement submitted for discretionary approval by any legislative body of the City or any other entity with jurisdiction over the CITY Work.
4. Termination.
This Agreement may be terminated for any reason by either party upon fifteen (15) days written notice of termination. TAP's obligation to reimburse the CITY pursuant to this Agreement shall survive such termination and shall be valid and enforceable even in the event (i) the Project is withdrawn from the CITY's consideration by TAP, or (ii) the Project is ultimately disapproved by any entity with jurisdiction over the Project or abandoned by TAP.
In the event either party provides notice of termination of this Agreement, TAP agrees that all funds on deposit may be used by the CITY to reimburse the CITY for all outstanding Reimbursable Expenses incurred by the CITY for the CITY Work or the CITY's consultants for CITY Work completed as of the effective date of such notice. Any remaining balance will be returned to TAP, along with an accounting of all final disbursements, within thirty (30) days of termination.
5. Notices.
All notices, including but not limited to Written Notice of Termination, shall be sent by mail, postage prepaid, and written invoices and other correspondence, shall be sent by either mail or e-mail, to the parties as follows:
Contact at CITY:
City Manager City of Gonzales
Carmen Gil
P.O. Box 647 Gonzales, CA
93926
Email: [email protected] TAP:
TAP Agricultural Partners, LLC
c/o Randy Pura
1172 S. Main Street #379
Salinas, CA 93901
Email: [email protected]
6. California Law and Attorney's Fees.
This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of any dispute, contest, arbitration or litigation between the PARTIES, the prevailing party in such dispute, contest, arbitration, or litigation shall be fully reimbursed by the other party for all costs, including reasonable attorneys' fees, court costs, expert or consultant's fees and reasonable travel and lodging expenses, incurred by the prevailing party in its successful prosecution or defense thereof, including any appellate proceedings.
7. Successors and Assigns.
This Agreement and all of its provisions shall bind the heirs, legal representatives, successors and assigns of TAP Agricultural Partners, LLC and the City of Gonzales.
8. No Agency, Joint Venture or Partnership.
It is understood that TAP Agricultural Partners, LLC.is not an agent of the CITY. The CITY and TAP hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing contained herein or in any documents executed in connection therewith shall be construed as making the CITY and TAP joint venturers or partners.
9. Severability.
If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the PARTIES. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provisions to a particular situation, is held to be invalid, void, or unenforceable, either the CITY or TAP may terminate this Agreement according to the termination provisions herein.
10.Execution.
This Agreement shall be executed by authorized representatives of the CITY and TAP. The persons executing this Agreement represent that they have the express authority to enter into agreements on behalf of the CITY and TAP.
The terms and conditions of this Agreement are meant to supersede and supplant any and all other agreements between the parties, either oral or written, with respect to the subject matter established herein.
This Agreement may be signed in Counterparts.
CITY OF GONZALES
_________________________
Carmen Gil, City Manager
Dated: _____________________
TAP Agricultural Partners, LLC
a California limited liability company
_________________________
Randy Pura, Manager
Dated: _____________________
Approved as to form:
Jarvis Fay & Gibson, LLP
Attorneys for the City of Gonzales
__________________________
Michael F. Rodriguez, City Counsel
Dated: _____________________