HomeMy WebLinkAboutPoseidon Resources (Surfside) LLC - 2010-04-19 Council/Agency Meeting Held:_ D/d
Deferred/Continued to:
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Council Meeting Date: April 19, 2010 Department ID Number: PL 10-11
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Administrator
PREPARED BY: Scott Hess, AICP, Director of Planning and Building
SUBJECT: Approval of a Reimbursement Agreement with Poseidon Resources
(Surfside) LLC for Costs Incurred for Processing Documents
Statement of Issue:
Transmitted for City Council approval is a reimbursement agreement with Poseidon
Resources (Surfside) LLC for the preparation of documents for the Poseidon Desalination
project.
Funding Source: Not applicable
Recommended Action: Motion to:
Approve and authorize the Mayor and City Clerk to execute the "Reimbursement Agreement
Between the City of Huntington Beach and Poseidon Resources (Surfside), LLC for Costs
Incurred for Processing Documents" as prepared by the City Attorney.
Alternative Action(s):
"Continue the Reimbursement Agreement and direct staff accordingly."
Item 12. - Page 1
REQUEST FOR COUNCIL ACTION
MEETING DATE: 4/19/2010 DEPARTMENT ID NUMBER: PL 10-11
Analysis:
Poseidon Resources (Surfside) LLC is proposing to develop a desalination facility at 21730
Newland Street. This project will require Poseidon to obtain numerous discretionary permits,
agreements and environmental analyses from the City as well as other government
agencies. Review and approval of these documents and permits will involve a large amount
of city staff time beyond that typically required for standard entitlement processing. As a
result, Poseidon has agreed to reimburse the City for the extra staff time involved on this
project. In addition, Poseidon has paid all required City application fees, which covers staff's
time associated with standard entitlements.
Due to the unpredictable nature of other government agencies and the environmental review
process, it is impossible to estimate the total amount of staff time that will be required to
finalize the requisite permits, documents and environmental analyses. As a result, Poseidon
has agreed to make an initial deposit to the City of $30,000 with subsequent deposits upon
invoice from the City.
There have been many reimbursement agreements requested by staff and the development
community, and Poseidon entered into a reimbursement agreement for the previous round of
city approvals. Staff recommends the City Council approve the reimbursement agreement.
Environmental Status:
Projects over which public agencies exercise ministerial authority are categorically exempt
from the California Environmental Quality Act pursuant to Section 15300.1.
Strategic Plan Goal: Maintain financial viability and our reserves
Attachment(s):
Y - oion
1. Reimbursement Agreement with Poseidon Resources Surfside LLC
Item 12. - Page 2
ATTACHMENT # 1
REIMBURSEMENT AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND POSEIDON
RESOURCES (SURFSIDE) LLC FOR COSTS INCURRED
FOR PROCESSING DOCUMENTS
THIS AGREEMENT ("Agreement") is made and entered into by and between the
City of Huntington Beach, a municipal corporation of the State of California, hereinafter
referred to as "CITY," and POSEIDON RESOURCES, hereinafter referred to as
"DEVELOPER."
WHEREAS, DEVELOPER is proposing to develop an area within the City of
Huntington Beach known as the Desalination Project ("Project") at 21730 Newland Street;
and
DEVELOPER is required to obtain CITY approval of various discretionary matters,
such as permits, agreements, entitlements, zone changes, land use approvals and
environmental assessments; and
DEVELOPER desires to have CITY commit sufficient resources to enable the
expeditious processing of applications and other necessary documentation; and
Pursuant to California Government Code Section 87103.6, DEVELOPER is allowed
to defray the cost of processing development applications and entitlements by reimbursing
CITY for such costs,
NOW, THEREFORE, in consideration of the promises and agreements hereinafter
made and exchanged, the parties agree as follows:
1. PAYMENT
DEVELOPER agrees to reimburse CITY for its professional services as
follows:
09-2347.002/45216 1 of 7
A. Within ten (10) days following approval of this Agreement by CITY,
DEVELOPER will make an initial payment to CITY in the amount of Thirty
Thousand Dollars ($30,000) (hereinafter the "Amount of Deposit"). DEVELOPER
will make subsequent payments of Twenty Five Thousand Dollars ($25,000) within
thirty (30) days notification from City when the balance of DEVELOPER'S deposit
reaches or is anticipated to reach Five Thousand Dollars ($5,000). The parties
acknowledge that the Amount of Deposit will be used to pay the professional services
funded by this Agreement. DEVELOPER acknowledges that the amount referenced
in this Agreement is the CITY's best estimate of the costs for the services described
herein, and that the actual cost of said services may be higher. In the event that the
actual cost of said services exceeds the estimated costs, DEVELOPER agrees to pay
the actual cost within ten (10) days after receiving CITY's invoice for same. In the
event the actual costs of Reimbursement Services are less than the estimated costs,
CITY will refund the difference between the actual and estimated costs.
B. A late payment fee of ten percent (10%) will be assessed if CITY
receives any payment later than the thirtieth (30th) day after that payment is due but
unpaid. In addition, one and one-half percent (11/z) interest per month shall be added
for each month the payment hereunder is due but unpaid.
C. Payments mailed to CITY shall be mailed to P.O. Box 711, Huntington
Beach, CA 92648-0711.
09-2347.002/45216 2 of 7
2. STATEMENT OF INTENT
The amounts reimbursed to CITY pursuant to this Agreement will help defray
CITY's cost of the professional services required to process DEVELOPER's various
development applications and entitlements as set forth herein.
3. EXCLUSIVE CONTROL BY CITY
CITY will maintain exclusive control over the work described herein. Nothing
in this Agreement:
A. Shall be deemed to require CITY to approve any plan, proposal,
suggestion, application or request submitted by DEVELOPER.
B. Shall be deemed to limit, in any respect whatsoever, CITY's sole
authority to direct and control the planner(s) assigned to DEVELOPER's various
development projects.
C. Shall be deemed to impose any liability on CITY different from any
liability as may otherwise be established by law.
4. CITY EMPLOYEES AND OFFICIALS
DEVELOPER shall employ no CITY official nor any regular CITY employee
in the work performed pursuant to this Agreement. No officer or employee of CITY shall
have any direct financial interest in this Agreement.
5. TERMINATION OF AGREEMENT
Either party may terminate this Agreement at any time with or without cause,
upon ten (10) days' prior written notice to the other party. DEVELOPER shall be responsible
for all costs incurred prior to termination, including any and all costs incurred after notice of
termination has been given.
09-2347,002/45216 3 of 7
6. TERM
This Agreement shall be effective on the date of its approval by the City
Council of CITY. This Agreement shall expire when terminated as provided herein.
7. NOTICES
Any notices, certificates, or other communications hereunder shall be given
either by personal delivery to DEVELOPER's agent or to CITY as the situation shall warrant,
or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the
United States Postal Service, to the addresses specified below; provided that CITY and
DEVELOPER, by notice given hereunder, may designate different addresses to which
subsequent notices, certificates or other communications will be sent:
TO CITY: TO DEVELOPER:
City of Huntington Beach Poseidon Resources (Surfside) LLC
ATTN: Director of Planning & Building 17011 Beach Boulevard, Suite 900
2000 Main Street Huntington Beach, CA 92647
Huntington Beach, CA 92648
8. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid
unless in writing and duly executed by both parties.
9. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive
phrases at the beginning of the various sections in this Agreement are merely descriptive and
are included solely for convenience of reference only and are not representative of matters
included or excluded from such provisions, and do not interpret, define, limit or describe, or
construe the intent of the parties or affect the construction or interpretation of any provision of
this Agreement.
09-2347.002/45216 4 of 7
10. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the
remaining covenants and provisions of this Agreement. No covenant or provision shall be
deemed dependent upon any other unless so expressly provided here. As used in this
Agreement, the masculine or neuter gender and singular or plural number shall be deemed to
include the other whenever the context so indicates or requires. Nothing contained herein
shall be construed so as to require the commission of any act contrary to law, and wherever
there is any conflict between any provision contained herein and any present or future statute,
law, ordinance or regulation contrary to which the parties have no right to contract, then the
latter shall prevail, and the provision of this Agreement which is hereby affected shall be
curtailed and limited only to the extent necessary to bring it within the requirements of the
law.
11. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been
prepared and signed in counterparts as duplicate originals, each of which so executed shall,
irrespective of the date of its execution and delivery, be deemed an original. Each duplicate
original shall be deemed an original instrument as against any party who has signed it.
09-2347.002/45216 5 of 7
12. IMMIGRATION
DEVELOPER shall be responsible for full compliance with the immigration
and naturalization laws of the United States and shall, in particular, comply with the
provisions of the United States Code regarding employment verification.
13. LEGAL SERVICES SUBCONTRACTING PROHIBITED
DEVELOPER and CITY agree that CITY is not liable for payment of any
subcontractor work involving legal services, and that such legal services are expressly outside
the scope of services contemplated hereunder. DEVELOPER understands that pursuant to
Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel
for CITY; and CITY shall not be liable for payment of any legal services expenses incurred
by DEVELOPER.
14. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce
the terms and/or provisions of this Agreement or to secure the performance hereof, each party
shall bear its own attorney's fees.
15. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws
of the State of California.
16. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has
the power, authority and right to bind their respective parties to each of the terms of this
Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event
that such authority or power is not, in fact, held by the signatory or is withdrawn.
09-2347.002/45216 6 of 7
17. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement
between the parties respecting the subject matter of this Agreement and supersedes all prior
understanding and agreements whether oral or in writing between the parties respecting the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized officers on //a //- Z�, 20 /0 .
POSEIDN RESOURCES (S RFSIDE) LLC CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
By: California
print name
ITS: (circle one)Chairman/Presiden ice Presid nt Mayor
AND
ity Cler �� 18
By:
INITIATW AND APPROVED:
print name _.
ITS: (circle one) Secretary/(hief Financial Officer/ Director of Plffnning & Building
Asst. Secretary—Treasurer
REVIEWED AN APPROVED AS TO
CONTENT-
IPY'Alministrator
APPROVED 4S TO FORM:
City Attorney
09-2347.002/45216 7 of 7
Esparza, Patty
From: Flynn, Joan
Sent: Friday, April 16, 2010 9:10 AM
To: 'julie@bixby.org'
Cc: Esparza, Patty
Subject: Re: Item 12 on Monday night
Thanks Julie -- -I'll note that Monday night verbally in the late communication portion of the meeting
and the minutes will reflect the word proposed for the item.
Joan L. Flynn, CIVIC
Huntington Beach City Clerk
----- Original Message -----
From: Julie Bixby <julie@bixby.org>
To: Flynn, Joan
Sent: Fri Apr 16 07:39:47 2010
Subject: Item 12 on Monday night
Joan,
Item 12 reads:
Approval of a Reimbursement Agreement with Poseidon Resources (Surfside) LLC to pay the City for
extra staff time involved for the preparation and processing documents for the Poseidon Desalination
facility located at 21730 Newland Street.
It sounds like the facility already exists! That should properly say "PROPOSED" facility.
Julie Bixby
Engage Romulan .sig cloaking device...
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City ®f Huntington Beach
.< _ 2000 Main Street • Huntington Beach, CA 92648
OFFICE OF THE CITY CLERK
JOAN L. FLYNN
CITY CLERK
April 21, 2010
Poseidon Resources (Surfside) LLC
17011 Beach Boulevard, Suite 900
Huntington Beach, CA 92647
To Whom it May Concern:
Enclosed for your records is a copy of the Reimbursement Agreement between the City
of Huntington Beach and Poseidon Resources (Surfside) LLC for costs incurred for
processing documents.
Sincerely,
i")
an L. Flynn, CMC
City Clerk
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Enclosure
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