01337.0033/863120.2
PROJECT REIMBURSEMENT AGREEMENT
This PROJECT REIMBURSEMENT AGREEMENT (“Agreement”) is executed this 13th day of February 2023 (“Effective Date”), by and between the CITY OF RICHMOND, a California municipal corporation (“ City”), and CHEVRON PRODUCTS COMPANY, a division of CHEVRON U.S.A., INC. (“Developer”). City and Developer may be referred to, individually or collectively, as “Party” or “Parties.”
RECITALS
WHEREAS, Developer operates a petroleum refinery located at 841 Chevron Way in Richmond, California, 94801. The refinery currently operates a two -train hydrogen plant that produces hydrogen to supply process units including hydrocracking and hydrotreating to manufacture transportation fuels, such as gasoline.
WHEREAS, Chevron has submitted an application for a Hydrogen Fuels Project to the City (“Project”). The Project proposes to alter the existing facility to produce fuel cell grade hydrogen (H2) as an alternative motor vehicle fuel. As part of that process Chevron has submitted an application to the Bay Area Air Quality Management District (BAAQMD) for certain approvals.
WHEREAS, pursuant to California Environmental Quality Act ("CEQA"), the Project must be reviewed by City for potential additional environmental impacts. Environmental analysis is required under CEQA for land use entitlements. N ecessary environmental documents will be prepared for the Project. City will retain the services of outside consultants due to the nature and scope of the Project.
WHEREAS, City has agreed to hire one or more consultants ( “Consultants,” and individually a “Consultant” ) to assist in processing applications and plans submitted by Developer for the Project, which will also include an analysis and approval required under CEQA laws and regulations. City will also utilize its own staff to ove rsee and coordinate the processing of such applications and plans and will use the City Attorney’s office for review and negotiation of documents or agreements related to the Project.
WHEREAS, City is the lead agency, within the meaning of the California Environmental Quality Act, Public Resources Code § 21000 et seq . (" CEQA"), for purposes of conducting environmental review of the Project, and as such, will prepare the draft and final CEQA documents released for public review and comment, and will review and approve any and all supporting documents using its independent judgment. The City shall distribute such reports and documents to responsible agencies and others, hold public hearings and consider public comments, and consider approval or certification of such reports and other documents as it deems necessary and appropriate in accordance with CEQA.
WHEREAS, a ccordingly, despite any funding mechanism provided in this Agreement, during the existence of the City's contract with the Environmental Consultant (as defined below), and for a period of one (1) year after final resolution of the Development Application, neither
2 Developer, nor any of its representatives, agents or other persons acting on behalf of Developer, shall enter into any financial relationship with the Environmental Consultant or with any City official, employee, or contractor. Nor, during such period, shall Developer propose to enter into any future relationship with the Environmental Consultant or with any City official, employee, or contractor. This shall not prevent Developer's consulting with Environmental Consultant as permitted by Section 10 of this Agreement.
WHEREAS, as of the date of execution of this Agreement, the City has already incurred certain costs and attorney’s fees in connection with the Project, and such costs and fees are intended to be included as reimbursable costs pursuant to this Agreement.
WHEREAS, the City and Developer desire to enter into this Agreement to provide for Developer to be responsible for all direct and indirect City costs related to the Project, and for Developer to deposit funds with City in advance to reimburse City for such costs, and to establish procedures therefor.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable consideration, the adequacy of which is hereby acknowledged, the Parties hereby agree as follows:
TERMS
1. Incorporation of Recitals. The Parties hereby incorporate the Recitals as though fully set forth herein.
2. Developer Responsibility for City Costs. Developer shall be responsible for, and shall reimburse City for, all direct and indirect costs, fees and expenses of City related to review and City’s undertaking of the planning, design, and permitting for the Project, including processing and negotiating any permits, entitlements and proposed conditions of approval for the Project. Developer’s deposits shall be
inclusive of any City efforts to facilitate the review and approval of the Project by other agencies, as may be needed, and the processing of the approvals which requires an analysis and approval under CEQA laws and regulations (the “ City Costs”). City Costs include, but are not limited to: (a) City Attorneys’ fees, at a rate not to exceed $400.00 per hour as adjusted for inflation including but not limited to, for drafting, negotiating and reviewing this Agreement, contracts with Consultants, contracts with other agencies and public agencies, and any documents that the City deems necessary in connection with undertaking of the planning, design, permitting, and for the processing of the Project approvals, (b) staff time required for drafting, negotiating and reviewing this Agreement, contracts with Consultants, and contracts with other agencies and public agencies, and any documents that the City deems necessary in connection with undertaking of the processing, planning, design, and permitting for the Project ; and (c) all costs associated with Sections 2(a) and 2(b) above, including consultant costs and fees; (d) all costs related to studies, reports and design services for the development of any Project - related infrastructure; (e) all costs related to investigations of the Property or the P roject; and (f) any other fees and costs deemed necessary by the City in order to process, review, or act upon or complete the Project. Developer’s obligation to deposit and reimburse City Costs are in addition to Developer’s duty to indemnify, defend, and hold harmless City, as set forth in Section 8, below.
3 2.1 Deposit. In furtherance of the foregoing, Developer has or shall, within ten (10) days of the Effective Date, deposit with City an initial sum of One Hundred Thousand ($100,000.00) against which any Ci ty Costs will be drawn down ( “Deposit”). The Deposit represents City’s best estimate of Developer’s ultimate financial obligation to City under this Agreement. At no point in time shall the minimum balance of the Deposit fall below $50,000, or City’s reasonably estimated City Costs to fund a period of 90 days of future City Costs hereunder and Developer shall make such additional deposit(s) required under Section 2.2, below.
2.2 Additional Deposits by Developer. Developer shall make additional deposits to the City within ten (10) days of City’s written request to the Developer. City’s written requests for additional deposits shall state what costs have been incurred to date, additional costs anticipated, and how City intends to apply any needed additional Developer deposits. If deposited sums exceed the costs incurred by City, City shall refund the difference in accordance with Section
2.7. 2.3 City’s Right to Cease Work. In the event that Developer does not promptly pay or reimburse the City Costs, including by fai ling to deposit amounts incurred or timely pay any additional requested deposits, City may immediately cease all work related to or concerning the Project, and may take such further action as City deems appropriate, including deeming any Developer application(s) abandoned and any development permit issued by City to Developer null and void. Developer shall have no claim against City for such action other than recovery of any excess deposit for which City Costs have not been incurred and hereby waives such claims.
2.4 Interest on Deposit. Any amounts deposited by Developer may be maintained by City in an interest -bearing account of City’s choice and may be co -mingled with other City funds in such account. Interest accruing upon any such deposits shall inure to and be created for the benefit of City.
2.5 Accounting. City shall keep an accounting of the City Costs and all deposits made by Developer. Upon written request, City shall provide statements of these accounts 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 2. Developer may question or challenge any use of funds set forth in the accounting as being inconsistent with the terms of this Agreement and may appeal same to the City Council.
2.6 Unexpended Funds. Upon completion of City’s assistance in connection with Developer’s completion of the Project, the granting or issuance of all necessary Project approvals, the expiration of all applicable appeal periods, and if a legal or administrative challenge is made to the approvals, then upon the resolution of such challenge, City shall return any then - unexpended portion of the deposit to Developer, without interest, less an amount equal to any unpaid City Costs previously incurred by the City.
2.7 Developer’s Right t o Terminate Agreement . In the event Developer determines, in its sole discretion, that it no longer desires to pursue the development of the Project, Developer shall deliver written notice to the City of its election to terminate this Agreement. Such
4 written notice of termination shall be delivered to City at least 30 days prior to the effective date of termination. Upon receipt of any notice of termination, City shall immediately cease all work under this Agreement except as otherwise agreed upon between the Parties. The City shall refund Developer any funds previously deposited with the City that are in excess of the costs incurred by the City under this Agreement (such costs incurred by City under this Agreement shall include, without limitation, work carried out by City pursuant to this Section 2.7) within 30 days of receipt of such notice of termination.
3. Additional Taxes, Fee, and Charges. Notwithstanding any provision to the contrary, Developer shall pay all normal and customary fees and charges applicable to all permits and approvals necessary for the Project, and any taxes, fees, and charges hereafter imposed by City, which are standard and uniformly-applied to similar projects in the City.
4. City Release; Expiration. This Agreement shall expire (i) upon agreement by the parties, (ii) Developer termination under Section 2.7, (iii) upon abandonment of the Project by Developer due to inactivity as reasonably determined by City or (iv) upon completion of the Project. In such event, expiration only occurs i f Developer’s obligations have been satisfied, including the indemnity obligation in Section 8.2.
5. Remedies. In the event of a breach by Developer, City may, in addition to any other remedies, seek to recover the City Costs plus reasonable attorneys’ fees i n enforcing this Agreement. This provision will not be interpreted to curtail any of City’s remedies at law or equity against Developer for any violation of its codes, nor shall it be interpreted as a waiver of any defense of Developer.
6. Conflicts of Interest.
6.1 No Financial Relationship. Developer acknowledges the requirements of Government Code Sections 1090 et seq. (the “1090 Laws”) and warrants that it has not entered into any financial or transactional relationships or arrangements that would violate the 1090 Laws, nor shall Developer solicit, participate in, or facilitate a violation of the 1090 Laws.
6.2 Developer’s Representations and Warranties. Developer represents and warrants that it is duly authorized to do business in the State of California. Developer further represents and warrants that, for the 12 -month period preceding the Effective Date of this Agreement, it has not entered into any arrangement to pay financial consideration to, and has not made any payment to, any City official, agent or employee that would create a legally cognizable conflict of interest as defined in the Political Reform Act (California Government Code sections 87100 et seq.).
7. Developer Acknowledgements. Subject to the obligations set forth in this Agreement, Developer acknowledges and agrees that under case law the preparation of environmental documents and analysis is required to be by City and independent of Developer, so, with respect to the work concerning the Project:
7.1 City has sole discretion to select which of its employees and consultants are assigned to the work.
5 7.2 City has sole discretion to direct the work and evaluate the performance of the employees and consultants assigned to the work, and City retains the right to terminate or replace at any time any such person.
7.3 City has sole discretion to determine the amount of compensation paid to employees or consultants assigned to the work.
7.4 City, not Developer, shall pay employees and consultants assigned to the work from a City account. Channels of communication be tween Developer and City employees and consultants shall be established by City.
8. Indemnification and Hold Harmless.
8.1 Agreement Not Liability or Debt of City. The Parties acknowledge that there may be challenges to the legality , validity and adequacy of this Agreement , the Project itself, or other City actions related to the same. If such challenges are successful, such challenges could delay or prevent the performance of this Agreement, the approvals, or implementation of the Project. City shall have no liability whatsoever for the inability of Developer to obtain approvals or implement the Project, as the result of any judicial determination that some or all of the Project, or any other City action related to any of the same are invalid or inadequate or not in compliance with law. No official, officer, employee or agent of the City shall be personally liable hereunder to any extent. The Parties further acknowledge and agree that this Agreement is not a debt of the City. The City shall not in any event be liable hereunder other than to return the unexpended and uncommitted portions of the deposit as provided in Section
2.6 above, and to provide an accounting under Section 2.5 above. The City shall not be obligated to advance any of its own funds for any reason whatsoever.
8.2 Indemnification. Developer agrees to indemnify, protect, defend, and hold harmless the City and its officials, officers, employees, agents, elected boards, commissions, departments, agencies, and instrumentalities thereof, from any and all actions, suits, claims, demands, writs of mandamus, liabilities, losses, damages, penalties, obligations, expenses, and any other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to, arbitrations, mediations, and other such procedures) asserted by third parties against the City that challenge, or seek to void, set aside, or otherwise modify or annul, the action of, or any appr oval by, the City for or concerning this Agreement, the Project, or any other City action related to any of the foregoing (including, but not limited to, reasonable attorneys’ fees and costs) (herein the “Claims and Liabilities”) whether such Claims and Li abilities arise under planning and zoning laws, the Subdivision Map Act, CEQA, Code of Civil Procedure Sections 1085 or 1094.5, or any other federal, state, or local statute, law, ordinance, rule, regulation, or any decision of a competent jurisdiction. In the event any action for any Claims and Liabilities is brought against the City and/or related parties, upon City’s notification to Developer of the pendency of a claim or suit, Developer shall make a minimum deposit sufficient to pay all of Developer’s indemnification obligations for the following ninety (90) days, which includes legal costs and fees anticipated to be incurred as reasonably determined by the City. Developer shall make deposits ( “Indemnity Deposit” ) required under this section within five (5) days of the City’s written request. At no point during
6 the pendency of such claim or suit shall the minimum balance of the Indemnity Deposit fall below One Hundred Thousand Dollars ($100,000).
If Developer fails to timely pay such funds, the City may abandon the action without liability to Developer and may withdraw from Indemnity Deposit or recover from Developer any attorneys’ fees and other costs for which the City may be liable as a result of abandonment of the action. It is expressly agreed that the City shall have the right to utilize the City Attorney’s office or use other legal counsel of its choosing. Developer’s obligation to pay the defense costs of the City shall extend until final judgment, including any appeals. City agrees to fully cooper ate with Developer in the defense of any matter in which Developer is defending and/or holding the City harmless. The City may make all reasonable decisions with respect to its representation in any legal proceeding, including its inherent right to abandon or to settle any litigation brought against it in its sole and absolute discretion, and City’s reasonable decision to settle or abandon a matter, including but not limited to following an adverse judgment or failure to appeal, shall not cause a waiver of the City’s indemnification rights. Any decision by the City to settle litigation shall not, without the written consent of Developer, bind Developer. City shall discuss litigation strategy with Developer in good faith but shall retain absolute discretion to make strategy decisions.
8.3 Exception. The obligations of Developer under this Section shall not apply to any claims, actions, or proceedings arising through the sole negligence or willful misconduct of the City, its members, officers, or employees.
8.4 Period of Indemnification . The obligations for indemnity under Section
8.2 shall begin upon the Effective Date and shall survive termination or expiration of this Agreement.
9. No Obligation to Approve Project. The provisions of this Agreement shall in no way obligate the City to grant any approvals or take any particular action related to an application for any part of the Project, whether in whole or in part.
10. Assignment. Developer may not assign this Agreement to any other entity unless agreed to in writing by City and upon proof of the financial viability of the successor entity to fulfill the Agreement’s obligations. City’s consent to assignment shall not be unreasonably withheld.
11. Relationship Between the Parties. The Parties agree that this Agreement does not operate to create the relationship of partnership, joint venture, or agency between City and Developer. Nothing herein shall be deemed to make Developer an agent of City.
12. Notices. All notices, demands, invoices, and communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:
To City: City of Richmond
450 Civic Center Plaza
Suite 300
7 Richmond, CA 94804
Attn: Shasa Curl, City Manager
Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave. Suite 1700
Irvine, CA 92612
Attn: David J. Aleshire, City Attorney
Email: [email protected]
To Developer: Chevron Products Company
P.O. Box 1272
Richmond, CA 94802
Attn: Shawn Lee, HSE/OE Manager
Email: [email protected]
Copy To:
Attn: Corporate Counsel
Email:
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail; and by email, upon the sender’s receipt of an email from the recipient acknowledging receipt.
13. 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.
14. Construction; References; Captions. It being agreed the Parties, or their agents have participated in the preparation of this Agreeme nt, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Unless otherwise specified, any term referencing time, days, or period for performance shall be deemed calendar days and not business days, provided, however that any deadline that falls on a weekend or holiday shall be extended to the next City business day. All references to Developer include all personnel, employees, agents, and contractors of Developer, except as otherw ise specified in this Agreement. All references to City include its elected officials, appointed boards and commissions, officers, employees, agents, and volunteers. The captions of the various 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.
15. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
16. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
8 service voluntarily given or performed by a Party shall give the other Party any cont ractual right by custom, estoppel, or otherwise.
17. Intent. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserv e to City all of its police power that cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority that cannot be restricted by contract.
18. Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation.
19. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
20. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect and shall be construed so as to effectuate the intent of the Parties.
21. Consent to Jurisdiction and Venue. This Agreement shall be constr ued in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties’ activities undertaken pursuant to this Agreement, shal l be filed and prosecuted in the appropriate California State Court in the County of Contra Costa, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction includi ng, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the gener ality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure section 394.
22. Time is of the Essence. Time is of the essence with respect to this Agreement.
23. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
24. Entire Agreement. This Agreement constitutes the entire agreement between City and Developer and supersedes any previous negotiations, discussions, communications, oral or written, and agreements between the Parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement.
25. Authority to Execute. The persons executing this Agreement on behalf of each of the Parties hereto warrant that (i) the Party on which behalf it is executing is duly organized and existing, (ii) such person is duly authorized to sign and deliver this Agreement on behalf of the Party he or she represents, (iii) by so executing this Agreement, such Party is formally bound to
9 the provisions of this Agreement, (iv) the entering into of this Agreement does not violate any provision of any other agreement to which such Party is bound and (v) there is no litigation or legal proceeding which would prevent such Party from entering into this Agreement.
[SIGNATURES OF PARTIES ON NEXT PAGE]
10 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
CITY:
CITY OF RICHMOND, a California municipal corporation
By:_________________________________
Shasa Curl, City Manager
ATTEST:
By:
Pamela Christian, City Clerk
APPROVED AS TO FORM:
By:
David J. Aleshire, City Attorney
DEVELOPER:
CHEVRON PRODUCTS COMPANY,
a division of CHEVRON U.S.A., INC.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Two corporate officer signatures required when Developer is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. 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.
01337.0033/863120.2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
On ___________________, 2023 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 in 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.
2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
On ___________________, 2023 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 in 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 docume nt 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.