CITY OF MENIFEE
COMMUNITY BENEFIT AGREEMENT
DOUBLE BUTTE BATTERY ENERGY STORAGE SYSTEM PROJECT
This Community Benefit Agreement ("Agreement") is entered into as of this day referred to as the "Parties."
RECITALS
A. Whereas, Developer controls approximately 27 acres of real property located within the City of Menifee, California (APN: 331-190-010, 331-190-011, 331-190-014, 331-190-017, 331-190-047, 331-190-056, 331-190-060), as described in detail in Attachment "A" (referred to as the "Property"); and
B. Whereas, Developer has requested certain entitlements and permits from the City for a battery energy storage system and associated systems, using lithium-ion, flow battery, or other technologies. The Project is located west of Palomar Road, south of the railroad tracks and Case Road, north of a drainage canal, electrical transmission corridor, and McLaughlin Road, and east of San Jacinto Road, as shown in Attachment "B"; and
A. Whereas, Menifee Municipal Code section 9.297.070 provides that no conditional use permit for a battery storage facility, utility scale, shall be issued unless the City has entered into a legally binding and enforceable agreement that benefits the City; and
B. Whereas, the City and Developer now desire to enter into this Agreement in order to clarify the means by which Developer will make payments) to the City to ensure the Project includes the aforesaid community benefits pursuant to Menifee Municipal Code section 9.297.070.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
{00601997;1) 2671/031858-0003
18965756.1 a04/27/23
1. Community Benefit Donation: Developer will make a $4,000,000 payment to the City as a Community Benefit Donation in two installments. Within ten days of obtaining all building permits for the Project, Developer will deposit 50% of the donation into the City's [general fund]. Within ninety days of starting construction, the remaining 50% will be deposited.
All deposits are non-refundable. The City may use the payment at its discretion for future benefits.
This is the sole payment required for the Project, and no additional contributions or participation in community improvement programs will be needed. Payments under this Section and Section 2 fulfill Developer's obligations to the City for the Project, and the City waives any other fees or assessments, except for impact fees and standard permit fees scheduled by the City.
2. Road and Bridge Benefit District. The Developer acknowledges that the Project will be obligated to participate in a future Road and Bridge Benefit District ("RBBD") for necessary transportation infrastructure to the Project. Although the RBBD has yet to be established, associated impact fees will be required once it is in place. The RBBD obligation for the Project will be funded from a portion of the Community Benefit Donation. It is anticipated that this amount will not exceed five hundred forty-six thousand dollars ($546,000) for the Project; however, the actual amount, once determined, will not increase the cumulative total for the Community Benefit Donation as indicated in Section 1, above.
Purchase of Equipment. Developer expects to obtain equipment and fixtures from construction contractors to complete the Project. Consistent with the requirements of applicable California law, the Developer agrees to cooperate with the City with respect to purchases of equipment and fixtures such that: (a) to the extent any such purchases of equipment and fixtures are from a construction contractor working for Developer at the Project site, Developer will, to the extent allowed by California law, require the construction contractor to secure the appropriate job- site sales tax permits such that such equipment and fixture purchases will be designated as having a point of sale within the City, such that the applicable sales tax will be collected and attributable to a purchase and sale within the City and (b) to the extent Developer is obligated to pay use tax on any such purchases of equipment and fixtures to be used at the Project site, Developer will, to the extent allowed by California law, secure the appropriate job-site use tax permits such that the applicable use tax will be collected and attributed to a Developer purchase within the City.
Default; Notice; Remedies. In the event of any default or breach of this Agreement by Developer, City shall provide notice to Developer of the default or breach. Developer shall have ten (10) days following receipt of the notice of default/breach to begin to diligently pursue remedying the default/breach.
No action by City pursuant this Section of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise its rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
5. General Provisions.
A. Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party as to all terms in the Agreement.
B. Cooperation: Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 18965756.1 a04/27/23
C. Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not workdays. All references to Developer include all personnel, employees, contractors, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various sections and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
D. Notices. Any written notice to Developer shall be sent to:
Any written notice to City shall be sent to:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Armando G. Villa, City Manager
E. Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
Waiver. A Party's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein shall not relieve the other Party of any of its obligations under this Agreement.
G. Project Financing. "Project Financing" means any construction and/or long term financing, any other type of financing or tax equity financing, as may be necessary for the Project. The Parties acknowledge and understand that the development and construction of the Project may be financed by Project Financing. The Parties agree to consider and negotiate in good faith changes or additions to this Agreement that may be reasonably requested by the Project Financing lenders to support the Project.
Financing (including but not limited to provisions under which lenders shall be entitled to receive copies of any notices hereunder that the City provides to Developer and that lenders shall be given the right to consent to any proposed changes or modifications to this Agreement), subject at all times to the City's right to withhold its consent to any amendments it deems unacceptable to the City.
H. Assignment or Transfer. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City except to an affiliate of Developer; provided, however, that Developer may make such assignments as the Developer deems necessary for collateral security purposes to aid in providing Project Financing for the Project without the consent of the City. Any other attempts to assign this Agreement or any interest herein without prior written consent of City shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. The City shall not withhold such approval if Developer's successor entity provides reasonably satisfactory evidence to City that it possesses the 18965756.1 a04/27/23
financial resources equivalent or superior to those of Developer to meet the obligations in this Agreement. Upon an assignment as allowed by this Section 9.H., Developer shall be released from its obligations under this Agreement; provided that assignee shall commit in writing to assume Developer's obligations under this Agreement.
Effective Date. This Agreement is not a commitment by the City to approve the Project. This Agreement shall have no force or effect until or unless the Project is approved, following compliance with the California Environmental Quality Act. This Agreement will become effective after the conditional use permit is final and non- appealable and this Agreement has been formally approved by the City and executed by the appropriate authorities of City and Developer.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first written above.
CITY:
CITY OF MENIFEE, a California municipal
corporation
Armando G. Villa, City Manager
ATTEST:
-
Stephanie Roseen, City Clerk
APPROVED AS TO
FORM:
Jeffrey T. Melching, City Attorney
18965756.1 a04/27/23
"Developer"
Double Butte Storage LLC, a Delaware
limited liability company
By:
Its:
18965756.1 a04/27/23
Exhibit A
Legal Description
18965756.1 a04/27/23
EXHIBIT "A"
PARCEL A: APN 331-190-010
Lot 763 of Romola Farms No. 6-A, as shown by map on file in Book 14 Pages 63 to 65 inclusive of Maps, Records of Riverside County, California
Together with those portions of Lots "FF" and "JJ", lying within the East half of the Northwest quarter of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
PARCEL B: APN 331-190-011
Lot 764 of Romola Farms No. 6-A, as shown by map on file in Book 14 Pages 63 to 65, inclusive, of Maps, Records of Riverside County, California; Together with those portions of Lot "JJ", lying within the East half of the Northwest quarter of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
PARCEL C: APN 331-190-014
Lot 762 of Romola Farms No. 6-A, as shown by map on file in Book 14 Pages 63 to 65 inclusive of Maps, records of Riverside County;
Together with those portions of Lots "FF" and "JJ", lying within the East half of the Northwest quarter of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
PARCEL D: APN 331-190-017
Lot 770 of Romola Farms No. 6A, as shown by map on file in Book 14 Pages 63 through 65 of Maps, Records of Riverside County, California.
Together with those portion of Lot "FF" lying within the East 1/2 of the Northwest 1/4 of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
PARCEL E: APN 331-190-047
Lot 769 of Romola Farms No. 6-A, as shown by Map on file in Book 14, Pages 63 through 65 of Maps, Records of Riverside County, California.
Together with those portions of Lot "FF" and "LL" lying within the East 1/2 of the Northwest 1/4 of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
PARCEL F: APN 331-190-054
Lot 766 of Romola Farms No. 6-A, as shown by Map on file in Book 14 Pages 63 through 65 of Maps, Records of Riverside County, California.
Together with those portions of Lots "JJ" and "OO" lying within the east 1/2 of the Northwest 1/4 of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
Excepting therefrom that portion of land conveyed to the Riverside County Flood Control and Water Conservation District by grant deed recorded April 22, 2014 as Instrument No. 146433 of Official Records of Riverside County, California.
PARCEL G: APN 331-190-056
Lot 768 of Romola Farms No. 60-A, as shown by Map on file in Book 14, Pages 63 through 65 of Maps, Records of Riverside County, California.
Together with those portions of Lot "LL" lying within the East 1/2 of the Northwest 1/4 of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
Excepting therefrom that portion of land conveyed to the Riverside Flood Control and Water Conservation District by Grant Deed recorded April 22, 2014 as Instrument No. 146433, Records of Riverside County, California.
PARCEL H: APN 331-190-058
Lot 767 of Romola Farms No. 6-A, as shown by Map on file in Book 14, Pages 63 through 65 of Maps, Records of Riverside County, California.
Together with those portions of Lots "LL" and "OO" lying within the East 1/2 of the Northwest 1/4 of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
Excepting therefrom that portion of land conveyed to the Riverside County Flood Control and Water Conservation District by Grant Deed recorded April 22, 2014, as Instrument No. 146433, Records of Riverside County, California.
PARCEL I: APN 331-190-060
Lot 765 of Romola Farms No. 6-A, as shown by Map on file in Book 14, Pages 63 to 65 inclusive of Maps, Records of Riverside County, California; Together with those portions of Lot "JJ", lying within the East half of the Northwest Quarter of Section 14, Township 5 South, Range 3 West, San Bernardino Base and Meridian.
Excepting therefrom that portion conveyed to the Riverside County Flood Control and Water Conservation District by Grant Deed recorded April 22, 2014 as Instrument No. 146434, of Official Records.
APN: 331-190-060, 331-190-058, 331-190-056, 331-190-054, 331-190-047, 331-190-017, 331- 190-014, 331-190-011, and 331-190-010
(End of Legal Description)
Attachment B
Double Butte Project - Site Plan
•
,00601997;1 2671/031858-0003
8965756.1 a04/27/23 -9-
PROPERTY BOUNDARY
AN SIONTO ROOS
DIST aes
30 R/N CEDICATON
NOT A PARE (IT ONE Ver SUNTEC
10"
Stantec
MiNe cec
•a
SAN JACINTO ROAD TYPICAL SECTION
HERE TAT
CINTO ROAD-
DIST DIST
CASE
ST R/E DEDICATON
PARKAY
RUTURE
WALK
i ROAD
DUSTING ORNE-
MONA 15XI 1 28 60 50
PALOMAR ROAD TYPICAL SECTION
EGEND
DOUBLE BUTTE
STORM GRAN STORAGE
DESTINO CONTOUR PLOT PLAN NO.
RALROAD PLN22-0282
PROJECT LOCATIONE
PROPOSED
ME: STREET IMPHOVEMENTS CITY OF MENIFEE, CA
BESS S SUBSTATION AREA 33.7412, -117.1563
CE LEECAME PLAY - DECORATIE
WALL I SOUND SARMER SHEET TITLE & DESCRIPTION:
TrOM DOIN
RATES BONG FARTHEN
ma cree CIVIL SITE EXHIBIT
ADAWN A0e A
SOFTAMVE CARTER
500 MW / 2,000 MWh
BESS
GENERAL NOTES
ES19.0004
D. WATSON
10/19/2023
PRELIMINARY
NOT FOR CONSTRUCTION AS NOTED
MCLAUGHLIN ROAD
1" = 80" CO