HomeMy Public PortalAboutC-21-008 - Faring Capital, LLC., Agreement to Grant Development Impact Fee Credit and for Construction of Public InfrastructureAGREEMENT TO GRANT DEVELOPMENT IMPACT FEE CREDIT
AND FOR CONSTRUCTION OF PUBLIC INFRASTRUCTURE
This AGREEMENT TO GRANT DEVELOPMENT IMPACT FEE CREDIT AND FOR
CONSTrUCTION OF PUBLIC INFRASTRUCTURE ("Agreement") is made and entered into
this 13 , day of—
dx , 202 , by and among the CITY OF CARSON, a California
municipal corporate ("City"), CARSON RECLAMATION AUTHORITY, a California joint
powers authority ("Authority"), and FARING CAPITAL, LLC, a Delaware limited liability
company ("Developer"); each a "Party" and collectively, the "Parties".
RECITALS
A. Developer and Authority, have entered into that certain Option Agreement and
Joint Escrow Instructions, dated c 1'7 2020 (the "Option Agreement"), whereby
Developer obtained (i) the option to acquire certain Property (defined below), and (ii) the
opportunity to seek certain entitlements and approvals ("Entitlements") for a project (as more
particularly described in the Option Agreement, the "Project") Developer has proposed, and, in
consideration, Developer agreed to advance to the Authority an advance of funds in the amount of
$12,500,000 (the "First Advance Funds"), and potentially a second advance in the amount of
$32,500,000, subject to the terms and conditions of the Option Agreement. The subject property
for the Project is the Surface Lot of Cells 3, 4, and 5 (together with certain additional easements
and related rights described in the Option Agreement, collectively, the "Property") of that certain
157 acre site, formerly known as the Cal -Compact Landfill ("157 Acre Site" or "Site"), located in
the City of Carson, California; the Site and the Property are shown in the "Site Map" attached
hereto as Exhibit A and incorporated herein by this reference. The Option Agreement gives
Developer two different options, Options A and B (the "Options"), based on whether the Required
Approvals (as defined in the Option Agreement) are approved or not approved, including the
right/obligation of Developer to reprocess the Project if it is not approved, which Options are more
fiilly described in the Option Agreement. The City shall reserve fiill and final discretion over
Developer's proposed Entitlements and other Required Approvals in the exercise of its police
powers and land use authority.
B. Subject to the terns and conditions of this Agreement, City shall provide Developer
with development impact fee credits in the amount of $12,500,000 in exchange for the First
Advance Funds Developer has provided to the Authority. In exchange, the Authority obligates
itself to install at least $12.5M worth of public infrastructure on or supporting the 157 Acre Site
and described herein.
B. The 157 Acre Site was operated as a landfill prior to the incorporation of the City
of Carson in 1968 and as a result, the 157 Acre Site has serious soil and groundwater contamination
that requires substantial remediation. On October 25, 1995, the California Department of Toxic
Substances Control ("DTSC") approved a Remedial Action Plan ("RAP") for the 157 Acre Site,
which RAP requires the performance of the remediation work ("Remediation Work") being the
installation, operation and maintenance of certain remedial systems, including a landfill cap, gas
extraction and treatment system, and groundwater collection and treatment system ("Remedial
Systems") and including necessary grading. The Authority was formed on January 20, 2015 in
order to (among other things) acquire the 157 Acre Site from the former owner, Carson
Marketplace LLC ("CM"), to take over the remediation responsibilities under the RAP, among
other regulatory documents and obligations applicable to the environmental condition of the Site.
0122)3.002216 8 7011.1 SKS
Under the Option Agreement, the responsibility to perform the Remediation Work required for the
Remainder Cells, would be transferred to the Developer. In addition, in order to ensure that the
City would not undertake any work within the contaminated soils, Authority has agreed to
undertake the responsibility to install certain offsite public infrastructure ("Offsite
Improvements") as described herein.
C. The First Advance Funds may be used by the Authority for the purposes set forth
in the Option Agreement, including, without limitation, the construction of the Remedial Systems
and certain other improvements for the 157 Acre Site as required by the RAP and for the
construction and installation of certain public infrastructure required for the Site. In exchange for
Developer's payment of such First Advance Funds to the Authority, and as required under the
Option Agreement, Developer is entitled to DIF Credits (as defined below) in the amount of
$12,500,000, as detailed in, and subject to the terms and conditions of, this Agreement and the
Option Agreement.
D. Additionally, in exchange for City providing the DIF Credits to Developer,
Authority agrees to install the Offsite Improvements required for the Site in the amount of at least
$12,500,000, as such public infrastructure is described in the "Description of Offsite Public
Improvements", attached hereto as Exhibit B and incorporated herein by this reference. The
Offsite Improvements shall be timely constructed and coordinated with the development of the
Site.
E. The Carson Municipal Code ("CMC") Article XI (Ordinance 19-1931) ("DIF
Ordinance") establishes Development Impact Fees ("Impact Fees") that developers are required
to pay for their fair share of the costs to construct the infrastructure that will be necessary to
accommodate and mitigate the impacts and burdens on the public generally generated by new
development and that are necessary to protect the safety, health and welfare of persons in the City.
Impact Fees are collected as a condition to the development of land prior to the issuance of building
permits.
F. City and Developer now desire to enter into this Agreement to provide for a credit
to Developer in the amount of $12,500,000 to be used and applied by Developer towards the
Impact Fees otherwise applicable to existing and future development projects within the City
pursuant to the DIF Ordinance. In addition, City and Authority desire to enter into this Agreement
to provide the terms and condition under which the Authority shall install the Offsite
Improvements for the Property and the 157 Acre Site, as required in the Option Agreement on
behalf of the City.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for
other good and valuable consideration, the Parties hereto agree as follows:
AGREEMENT
1. Effective Date. This Agreement shall be deemed effective following the
approval of the City Council and the Authority Board once executed by the Parties as first stated
above (the "Effective Date"). Irrespective of the Effective Date, the Agreement Term shall not
commence until the Commencement Date as stated in Section 6.
2. Capitalized Terms; Conflicts With the Option Agreement. Capitalized terms
used but not defined herein shall have the meaning ascribed to such terms in the Option Agreement.
To the extent possible, in the event of conflict between the terms and provisions of this Agreement
0 1223.002216 8 70 1 1.1 SKS 2
and the Option Agreement, the terms and provisions shall be harmonized to eliminate any such
conflict. To the extent any of the terms and provision hereof cannot be harmonized with the terms
and provisions of the Option Agreement, the terms and provision hereof shall govern. In the event
that provisions of any attached appendices or exhibits conflict in any way with the provisions in
the body of this Agreement, the language, terms and conditions contained in this Agreement shall
control.
3. DIF Credit Amount. Upon the Commencement Date (defined below) Developer
shall be entitled to a credit in the amount of $12,500,000 ("DIF Credit(s)"), subject to the terms
and conditions of Section 5 below, to be used and applied by Developer towards the actual Impact
Fees that are to be received by the City in connection with any development projects within the
City not paid as of the Commencement Date or following the Commencement Date (subject to the
expiration of the Agreement Term) pursuant to the DIF Ordinance. The applicable terms of the
DIF Ordinance which shall apply shall be the most recent existing form of the Ordinance, provided
that the value of the credits cannot be reduced from $12,500,000, subject to the terms of Section
5.
4. Refund Pursuant to DIF Credit. Upon City's receipt of Impact Fees from any
entity under or pursuant to the DIF Ordinance following the Commencement Date, or any
subsequent fee(s) directly replacing or modifying such Impact Fees from time to time, the City
shall, within thirty (30) days of such receipt, refund Developer an amount equal to the sum
received. The City's reimbursement to Developer according to this process shall continue until
the earlier of (i) Developer's receipt of the full amount of the refund of its DIF Credits, or (ii) until
the expiration of the Agreement Term..
5. Fee Credit Ledger; Priority. City shall establish, and maintain a database or
ledger ("Ledger") that shows the total dollar value of the initial DIF Credit provided to Developer
under this Agreement, the date of receipt of any and all Impact Fees the City receives from any
entity following the Commencement Date, and the portion of DIF Credit that has been refunded
to Developer pursuant to this Agreement. A copy of this Ledger shall be provided to Developer
with each refund processed in accordance with Section 4. City covenants that it shall not, without
the prior written consent, of Developer, which Developer may withhold, condition or provide in
its sole and absolute discretion, sell, issue or otherwise transfer any credits under the DIF
Ordinance, or any subsequent fee(s) replacing or modifying such Impact Fees from time to time,
to or for the benefit of any other developments within the City of Carson during the Agreement
Term hereof, unless the City has or shall refund any such Impact Fees to the Developer (to the
extent there remains outstanding DIF Credits in favor of Developer). Notwithstanding anything
herein to the contrary, neither the terms and provisions of Sections 8, 9, 10 or 11 nor any breach
thereof shall affect the validity or enforceability of this Section. Notwithstanding anything to
the contrary hereunder, in the event City or Authority refunds or reimburses Developer with
a portion of the First Advance Funds, the amount of the DIF Credits Developer is entitled to
receive hereunder shall be reduced on a corresponding (dollar for dollar) basis. .
6. Agreement Term. Unless terminated as set forth in Section 13 hereof, the term
of this Agreement shall commence on the Commencement Date and expire on the earlier of (i)
twenty (20) years thereafter, or (ii) the date on which Developer has received the full amount of
the refund of its DIF Credits (i.e., the balance of the DIF Credits have been exhausted as shown in
the Ledger) ("Agreement Term"). The "Commencement Date" shall be the date on which either
of the following conditions have occurred (x) the occurrence of an Option B Trigger as set forth
0 1223.002216 8 70 1 1.1 SKS
in the second paragraph of Section 1.1 of the Option Agreement, or (y) one or more of Developer's
conditions precedent in Section 8.1 of the Option Agreement are not satisfied by the conclusion of
the Term (as defined in Section 2.4 of the Option Agreement) (including the extensions provided
thereunder) unless extended by the mutual agreement of the Parties; provided that (a) Developer
has given Authority the Option B Closing Notice described in Section 8.2 of the Option Agreement
and the conditions thereof are not satisfied within ninety (90) days following Authority's receipt
of such notice, and (b) in the case of a default by Authority, (i) the Notice of Default and
opportunity to cure has been provided without cure having occurred pursuant to Section 16.1 of
the Option Agreement, and (ii) the dispute resolution provisions of Section 16.2 of the Option
Agreement have been exercised without resolution. In the event of any claims concerning the
validity and enforceability of the DIF Credits, Developer shall defend any such claim and will bear
the legal cost and attorneys' fees of defending such claims; provided that Developer may elect not
to defend such claim by giving written notice to the Authority and City, in which case, the DIF
Credits shall be null and void and this Agreement shall terminate as of the date of such notice.
Indemnification.
(a) Developer Responsibilities. Developer agrees to indemnify and hold
harmless Authority, City, their officers, agents, consultants, and employees ("City Parties") from
any and all claims, demands, costs or liability arising from or connected with all activities
contemplated by this Agreement.
(b) City Responsibilities. City agrees to indemnify and hold harmless
Developer and its officers, directors, agents, consultants, employees, successors and/or assigns
("Developer Parties") from any and all claims, demands, costs (including, but not limited to,
reasonable attorneys' fees) or liability arising from the active negligent acts, fraud, errors or
omissions or willful misconduct of City or City Parties under this Agreement.
(c) Authority Responsibilities. Authority agrees that in carrying out its
obligations to install the Offsite Improvements, it shall indemnify and hold harmless City from
any and all claims, demands, costs or liability arising from or connected with all activities
contemplated by this Agreement.
(d) Project Agreements. The Option Agreement and Option B Documentation
may provide more comprehensive indemnity provisions superseding the provisions hereof.
8. Authority Construction, City Maintenance of Offsite Improvements.
Authority shall fulfill certain obligations of City in accordance with the EIR by constructing the
Offsite Improvements as set forth in Exhibit B. Additionally, except for Stamps Road south of
Lenardo Drive, all roads and Offsite Improvements built by Authority on the 157 Acre Site and
after formal acceptance by City will be maintained by the City as public streets and improvements.
City hereby agrees to accept such improvements if properly constructed hereunder in accordance
with all City standards and will (i) be responsible for all liability claims for public use other than
those resulting from or caused by presence of hazardous or toxic substances/materials,
contamination, or waste located on or migrating to or under such streets and improvements from
other areas of the 157 Acre Site, and (ii) accept ownership of such public streets and
improvements. City will maintain such roadway systems in a finished and attractive manner
conducive to the success of the Project.
01223.0022!687011.1 SKS 4
9. Contract Administration. Authority retains exclusive rights to contract with
and direct the work of its contractors constructing the Offsite Improvements hereunder. Authority
must undertake the work as a public agency subject to all laws of the state of California, as well
as ordinances of the City of Carson, and such requirements shall not make the City liable for the
Authority's acts, or the condition of the property hereunder. To this end, Authority agrees as
follows:
(a) Contract Administration. To perform the construction contract
administration for all Offsite Improvements, which shall include actual construction, contract
administration, materials testing and construction surveys. Authority may utilize an engineering
consultant team that includes a licensed Civil Engineer and _a construction inspector or other
representative to perform the function of the Resident Engineer and inspector.
(b) Plans and Specifications. To use plans and specifications prepared in
accordance with the RAP, CFA, City ordinances, applicable laws, and to obtain City's approval
of the construction terms and costs (which approval may be granted administratively through the
City Manager).
(c) Advertising and Bidding. All construction work shall be advertised, bid,
and awarded in compliance with all applicable laws, including City standards and policies, and the
contracts shall thereafter be administered in accordance therewith.
(d) Security. Authority shall require its contractors to provide such work and
performance security, including without limitation bonds securing performance, labor and
materials, and other such bid bonds as typically required under City policy for the award of public
construction contracts.
(e) Contract Change Orders. Authority shall have the right at any time, without
invalidating this Agreement, to order extra work or make changes to contracted work by altering,
adding to or deducting from said contracted work. No such extra work may be undertaken unless
a written change order is first given by the Authority to the contractor, incorporating therein any
adjustment in (i) the contract sum, and/or (ii) the time to perform such contracted work, which said
adjustments are subject to the written approval of the Contractor ("Change Order"). All such
Change Orders must be signed by the Contractor and Contract Officer prior to commencing the
extra work thereunder. Any Change Order that will increase compensation for, or costs of an
awarded contract, up to a maximum limit of five percent (5%) of the contract sum or $500,000,
whichever is less; or any increase in the time to perform of up to one hundred eighty (180) days;
may be approved by the Authority's Director. Any greater increases, taken either separately or
cumulatively must be reported to City and must be approved by the Authority Board.
(f) Final Inspections and Payment Accounting. City may inspect and acceptor
reject any of the public infrastructure constructed by Authority, including the Offsite
Improvements, both during performance or when completed for purposes of ensuring regulatory
and legal compliance with local, state and federal laws, building codes, and, to the extent relevant,
the RAP and CFA. City shall reject or finally accept any portion thereof in writing within thirty
(30) days after submittal to City. Acceptance of any work by City shall not constitute a waiver of
any of the provisions of this Agreement including, but not limited to provisions pertaining to
warranty and indemnification and insurance, respectively. Authority shall furnish City, within one
hundred twenty (120) calendar days after final payment to any construction contractor for the
01223.0022168701 1.1 SKS 5
Offsite Improvements, a final accounting of the total costs, including an itemization of actual unit
costs and actual quantities.
(g) Form of Construction Contract. In its administration and implementation
of contractors' work pursuant to this Agreement, Authority shall utilize a standard construction
contract form similar to the form and substance generally used by City in its public works
contracts.
(h) Access to Books and Records. City shall at all times have the right to inspect
and audit the books and records of Authority to assure that all work has been performed and
disbursements made properly in accordance with contract provisions. Each of Authority and City
shall bear their own respective costs of such audit. -
10. Standards of Work Applicable to Offsite Improvements. Authority shall at
all times faithfully, competently and to the best of its ability, experience and talent, perform all
services described herein. Authority covenants that it shall follow the highest professional
standards in performing the work required hereunder and that all materials will be of good quality,
fit for the purpose intended.
(a) Compliance with Law. Authority shall keep itself informed concerning, and
shall render all work hereunder in accordance with all ordinances, resolutions, statutes, rules, and
regulations of the City and any Federal, State or local governmental entity having jurisdiction in
effect at the time service is rendered.
(b) Licenses, Permits, Fees and Assessments. Authority shall obtain at its sole
cost and expense such licenses, permits, registrations, and approvals as may be required by law for
the performance of the work required by this Agreement. Authority shall have the sole obligation
to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the Authority's performance of the work
required by this Agreement, and shall indemnify, defend and hold harmless City, its officers,
employees or agents of City, against any such fees, assessments, taxes penalties or interest levied,
assessed or imposed against City hereunder.
(c) Protection and Care of Work and Materials. Authority shall adopt
reasonable methods, including providing and maintaining storage facilities, during the life of the
Agreement to furnish continuous protection to the work, and the equipment, materials, papers,
documents, plans, studies and/or other components thereof to prevent losses or damages, and shall
be responsible for all such damages, to persons or property.
(d) Assurance of Non Discrimination During Construction. The Authority
agrees 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 the Offsite Improvements or of this
Agreement, and shall assume compliance with this provision from its contractors, subcontractors,
and other performing work on the site. The Authority 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.
(e) Assurance of Payment of Prevailing Wages. Authority shall pay prevailing
wages as required by law, as described in California Labor Code § 1720 ("Prevailing Wage Law")
in the performance of the Offsite Improvements. Authority acknowledges and agrees that should
01223.0022/687011.1 SKS 6
any third party, including, but not limited to, the Director of the Department of Industrial Relations
("DIR"), require Authority or any of its contractors or subcontractors to pay the general prevailing
wage rates of per diem wages and overtime and holiday wages determined by the Director of the
DIR under Prevailing Wage Law, then Authority shall indemnify, defend, and hold City harmless
from any such determinations, or actions (whether legal, equitable, or administrative in nature) or
other proceedings, and shall assume all obligations and liabilities for the payment of such wages
and for compliance with the provisions of the Prevailing Wage Law.
11. Integration of Offsite Improvements Work with Overall Site Development.
Authority shall coordinate by using commercially reasonable efforts for the construction and
maintenance of Offsite Improvements located on (or serving) the Property along with those on (or
serving) Cells 1 and 2 such that the Offsite Improvements will not impair current or future
development. Authority's reasonable efforts to integrate Offsite Improvements as between all
Cells of the Site shall include, without limitation:
(a) That construction activities, including dust, noise, odors, traffic impediments,
etc., do not adversely affect the Project or the development of the other Cells of the Site.
(b) That certain "Phased Development Plan" or "MAPO" approved by DTSC,
which will include mitigation measures for the phased development of Cells to comply with DTSC
requirements.
12. Disputes; Remedies; Termination.
(a) Time is of the Essence. Time is of the essence with respect to this
Agreement.
(b) Consent to Jurisdiction and Venue. This Agreement shall be construed 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, shall be filed and prosecuted in the
appropriate California State Court in the County of Los Angeles, 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 including, 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 generality of
the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to
California Code of Civil Procedure Section 394.
(c) 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 service voluntarily given or performed by a Party shall give the other Party any
contractual right by custom, estoppel, or otherwise.
(d) Attorneys' Fees. In the event of any litigation or other legal proceeding
including, but not limited to, arbitration or mediation between the Parties arising from this
Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded
or granted, its reasonable costs and expenses (including attorneys' fees) incurred in the proceeding.
(e) Disputes. A Party not in default under this Agreement (a "Non -Defaulting
Party") in its discretion may elect to declare a default under this Agreement by delivering a written
notice of the alleged default ("Notice of Default") in accordance with the procedures hereinafter
01223.0022/687011.1 SKS 7
set forth for any alleged failure or breach of any other Party to perform any material duty or
obligation under the terms of this Agreement. Notwithstanding any failure or breach, a Party shall
be deemed to be in Default under this Agreement (and therefore, a Defaulting Party) only if: (i) the
Non -Defaulting Party has provided a Notice of Default to such Party setting forth the nature of the
breach or failure and the actions, if any, required to cure such breach or failure, and (ii) the Party
for which a breach is alleged shall have failed, if the breach or failure can be cured, to take such
actions and cure such default (x) within twenty (20) calendar days after the date of its receipt of
the written notice delivered by the Non -Defaulting Party for monetary defaults, or (y) for all other
defaults, within thirty (30) calendar days after the date of its receipt of the Notice of Default
delivered by the Non -Defaulting Party, provided, however, if any non -monetary default cannot be
cured within such thirty (30) day period, then the Party against which a default is alleged shall not
be deemed in breach of this Agreement if and as long as such 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 its Party's proposed course 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.
Notwithstanding anything to the contrary herein, Developer shall have no right to enforce the
obligations of the Authority vis-a-vis the City under Sections 8 through 10 above.
13. Termination. This Agreement shall terminate at the conclusion of the Agreement
Term as set forth in Section 6 above unless it is terminated earlier for the following reasons (i)
Developer shall have materially defaulted under this Agreement, the Option Agreement, or the
Option B Documentation, or (iii) Developer sells, transfers, or assigns this Agreement to another
party without the Authority's prior approval. Notwithstanding anything to the contrary
hereunder, this Agreement shall be void and of no further force nor effect in the event Option
A is effectuated by the Authority and Developer under the Option Agreement.
14. Relationship Between the Parties.
(a) No Partnership. The Parties agree that this Agreement does not operate to
create the relationship of partnership, joint venture, or agency between City Parties and Developer.
Nothing herein shall be deemed to make Developer or Developer Parties an agent of City Parties.
(b) Cooperation. 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.
(c) Successors. 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.
01223.002216 8 70 1 1.1 SKS
(d) No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
15. Miscellaneous.
(a) Notice. Any notices, requests, demands, documents approvals or
disapprovals given or sent under this Agreement from one Party to another (each a "Notice", and
collectively, the "Notices") shall be given to the Party entitled thereto at its address set forth below
or at such other address as such Party may provide to the other Parties in writing. Any such Notice
may be given (i) by personal delivery which will be deemed received on the day of delivery; (ii)
by national overnight delivery service which shall be deemed received the following day; (iii) by
mailing the same by registered or certified US mail, return receipt requested which will be deemed
delivered three (3) days after depositing same in the mail, addressed to the Party to whom the
Notice is directed as set forth below; or (iv) electronic mail so long as a hard copy is concurrently
sent to the applicable Party pursuant to subsections (i) through (iii) above, addressed as follows
which shall be deemed delivered upon electronic confirmation of receipt by the addressee to the
sending party:
To Authority: Carson Reclamation Authority
701 East Carson St.
Carson, CA 90745
Attention: Executive Director
Email: jraymond@carson.ca.us
With a Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave., Suite 1700
Irvine, CA 92612
Attention: Sunny Soltani
Email: ssoltani(@awattomeys.com
To City: City of Carson
701 East Carson St.
Carson, CA 90745
Attention: City Manager
Email: slanders@carson.ca.us
With a Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave., Suite 1700
Irvine, CA 92612
Attention: Sunny Soltani
Email: ssoltani(a,awattomeys.com
To Developer: FARING CAPITAL, LLC
c/o Faring Capital
659 N. Robertson Blvd.
West Hollywood, CA 90069
Attention: Jason Illoulian
Email: iasonafaring com
01223.0022/687011.1 SKS 9
With Copies to: Bryan Cave Leighton Paisner, LLP
1920 Main Street, Suite 1000,
Irvine, CA 92614-7276
Attention: Brett Souza
Email: bisouza(cbclplaw.com
(b) 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 either 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 otherwise
specified in this Agreement. 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.
(c) Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by the Parties.
(d) 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.
(e) Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original and which collectively shall constitute one single instrument.
The signature of any Party to this Agreement transmitted to any other Party by facsimile or e-mail
shall be deemed an original signature of the transmitting Party.
(f) Entire Agreement. This Agreement contains the entire agreement between
the Parties with respect to the subject matter of this Agreement and supersedes any prior oral or
written statements or agreements between the City, Authority and Developer with respect to the
subject matter of this Agreement.
(g) Qualification; Authority. Each Party warrants that it has the legal capacity
to enter into this Agreement. Each individual executing this Agreement on behalf of the Party
represents, warrants and covenants that (i) the Party is duly organized and existing, (ii) such person
is duly authorized to execute and deliver this Agreement on behalf of the Party in accordance with
authority granted under the organizational documents of the Party, (iii) the Party is bound under
the terms of this Agreement, and (iv) entering into this Agreement does not violate any provision
of any other agreement to which the Party is bound.
(h) Incorporation of Recitals & Exhibits. The Parties hereby affirm the facts
set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set
forth herein. Exhibits A and B attached hereto are incorporated herein by reference
[SIGNATURES ON FOLLOWING PAGE]
0 1 223.0022t68701 1.1 SKS 10
IN WITNESS WHEREOF, Authority, City and Developer have executed this Agreement
as of the date first above written.
DEVELOPER:
FARING CAPITAL, LLC, a Delaware limited
liability company
By: Faring Capital, LLC, a Delaware limited
liability company
By:
Name: J o Iloulian
Title: CE
L N
VIA
Donesia Gause-Aldana, MMC
City Clerk, City of Carson
AUTHORITY:
CARSON RECLAMATION AUTHORITY, a
California joint powers authority
By:
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CITY:
CITY OF CARSON, a California municipal
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Donesia Ga se -Alda a
Authority Secretary
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By: _6�;T
Sunny Soltani, Authority Counsel
Exhibits:
A Site Map
B Description of Offsite Public Improvements
01223 0022/687011 1 SKS
EXHIBIT A
Site Map
Del Aero Boulevard — �—
CELL 1
F r
CELL 4
CELL
TORRANCE LATERAL
CHANNEL EMBANKMENT
BANKMENT LOT
(PART OF CELL 2)
*r
CELL 5�
LANDFILL OPERATIONS CENTER
01223.00221687011.1 SKS
EXHIBIT B
Description of Offsite Public Improvements
A. Lenardo Drive and a portion of Stamps Road
Wet Utilities Necessary for Lenardo Drive Construction
2. Paving, Landscaping, Street & Traffic Lights, Dry Utilities Necessary for Lenardo Dr.
Construction
Other Contractor Costs (on Paving, Landscaping, Street & Traffic Lights, Dry Utilities
Costs)2
4. Plan Check and Permits Fees, Governmental Fees and Assessments3
5. Costs for Testing and Inspection
Geotechnical Design & Observation, Structural Design, Civil Design, Landscape
Design
7. Landfill Gas Suppression or Mitigation Operations4
8. Relocation/ Reconsolidation of /Waste into Landfills
9. Regulatory Compliance (AQMD/DTSC/Regional Board)'
10. Buffer Zone: Primary Methane Barrier & Design7
11. Project Labor Agreement (PLA) Premium (if City -bid project)8
12. Project Management and Soft Cost Contingency
13. Payment Bond9
B. Other Infrastructure Improvements
1 Includes water, recycled water, sewer, and storm drain.
2 Subcontractor Default Insurance (SDI) at 1.35% of these costs, Contractor's fee and Contractor's
contingency.
3 These also include utility company design and approval.
4 This assumes that Environmental Contractor would perform Health & Safety work including
methane suppression during intrusive activities.
5 This assumes that there may be a small amount of waste along the edge of the roadway that would
need to be relocated on site by Environmental Contractor.
6 Includes AQMD and DTSC oversight as well as SWPPP compliance.
7 If Lenardo Dr. construction proceeds before Cell 1 or Cell 2 work is completed, it is likely a
buffer zone would need to be designed and installed as part of the street construction project.
8 City of Carson has entered a Project Labor Agreement with regional trade unions. If this is a
City project, would need to bid it as a PLA project.
9 Public Works projects require a payment bond, which becomes a project cost.
01223.0022/687011.1 SKS
1. Off -Site Traffic Intersection Improvements 10
2. Electrical System Upgrades 11
3. Installation of Landfill Gas System in Lenardo Dr. 12
10 These are required for The District at South Bay Project by the EIR and affirmed by the 2018
Supplemental EIR. Costs were originally estimated in 2013, and updated in 2016 by inflating the
estimated cost by 30%. This can be revisited in changes to EIR.
11 SCE has indicated that the amount of power available to the 157 Acre Site is only sufficient to
serve the current uses (the Landfill Operations Center, street lights and signals), and the
development on Cell 2. A new electrical service line will be necessary to serve Cells 1, 3, 4, and
5.
12 There are 13 GCCS vaults and associated gas collection lines that are located in Lenardo and
would need to be installed at the time the street is constructed. This is not directly a street cost,
but overall a remedial system cost.
0 1223.0022168 70 1 1.1 SKS