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HomeMy WebLinkAboutAgreement A-23-090 Chestnut Westside.pdf 23-0072 Agreement No. 23-090 1 Recording Requested for the Benefit of the County of Fresno, 2 Department of Public Works 3 And Planning When Recorded Return To: 4 Department of Public Works 5 And Planning Development Services 6 Division Stop 214 Attn: Development Engineering 7 8 AGREEMENT 9 CONDITIONAL USE PERMIT NO. 19-01 (KINGS COUNTY) 10 TRAFFIC IMPACT FEES 11 12 THIS AGREEMENT is made and entered into this 28t" day of February, 2023, by and between 13 the COUNTY OF FRESNO, a political subdivision of the State of California (hereinafter "COUNTY') and 14 Chestnut Westside, LLC,a Delaware limited liability company registered to do business in the State of 15 California, located at 4700 Wilshire Boulevard, Los Angeles, CA 90010, the developer for Kings County 16 Conditional Use Permit No. 19-01 (hereinafter "DEVELOPER"). COUNTY and DEVELOPER may be 17 referred to herein individually as a "Party" and collectively as "Parties." 18 WITNESSETH 19 WHEREAS, on October 7, 2019 the Kings County Planning Commission approved Conditional 20 Use Permit No. 19-01, and adopted the Initial Study/Mitigated Negative Declaration prepared for 21 Conditional Use Permit No. 19-01; and 22 WHEREAS, said Initial Study/Mitigated Negative Declaration contained a Transportation 23 Analysis (TA) that identified mitigation measures related to traffic impacts; and 24 WHEREAS, on October 3, 2019, a detailed study entitled "Jayne Avenue Pavement Evaluation 25 Report" was prepared by Kimley-Horn outlining the current costs of construction of improvements 26 required by the development approved under Conditional Use Permit No. 19-01; and 27 28 Traffic Impact Fees — Chestnut Westside, LLC Pagel of 6 1 WHEREAS, included in the October 3, 2019 Kimley-Horn study was a detailed analysis entitled, 2 "Jayne Avenue Pavement Study— Fair Share Roadway Improvements Attributed to the Construction of 3 the Fresno County Segments of the Jayne Avenue Gen-Tie Line," a true and correct copy of which is 4 attached hereto as Exhibit A, and which identified the fair-share attributable to DEVELOPER for the 5 cost of improvements required by the development approved under Conditional Use Permit No. 19-01; 6 and 7 WHEREAS, DEVELOPER represents, acknowledges, and agrees that the findings of the 8 October 3, 2019 study identified above are reasonable and correctly identify DEVLOPER's fair share of 9 the cost of improvements required by the development approved under Conditional Use Permit No. 19- 10 01; and 11 WHEREAS, mitigation measure TR-1(d) requires that the DEVELOPER enter into an 12 agreement with the COUNTY to provide for funding of the traffic impact fees prior to the issuance of a 13 building permit for development associated with Conditional Use Permit No. 19-01; and 14 WHEREAS, the Board of Supervisors, as required by Fresno County Ordinance Code section 15 17.88.120, has by resolution on February 28, 2023, after noticed public hearing and following all other 16 procedures required by law, established the amount of the traffic impact fees for Kings County 17 Conditional Use Permit No. 19-01 ("Traffic Impact Fee"); and 18 WHEREAS, DEVELOPER shall be required to pay, and agrees to pay, the Traffic Impact Fee 19 prior to the issuance of a building permit for any development on the subject property. 20 NOW THEREFORE, the parties hereto agree as follows: 21 1. TRAFFIC IMPACT FEE. DEVELOPER shall pay the Traffic Impact Fee for Kings County 22 Conditional Use Permit No. 19-01 in the amount of$122,905.00, as shown in Exhibit A to this 23 Agreement, to the COUNTY Department of Public Works and Planning prior to the issuance of a 24 building or construction permit for any development under Kings County Conditional Use Permit No. 19- 25 01. DEVELOPER represents, acknowledges, and agrees that (a) there is a reasonable relationship 26 between the Traffic Impact Fee's use and the type of development on which the Traffic Impact Fee is 27 imposed, (b) there is a reasonable relationship between the need for the public facilities funded by the 28 Traffic Impact Fees — Chestnut Westside, LLC Page 2 of 6 1 Traffic Impact Fee and the development on which the Traffic Impact Fee is imposed, and (c) the 2 amount of the Traffic Impact Fee is reasonably related to, and does not exceed, the cost of the public 3 facility or portion of the public facility attributable to the development on which the Traffic Impact Fee is 4 imposed. 5 2. ADMINISTRATION FEE. In addition to the amount in Paragraph 1, DEVELOPER shall pay 6 three percent (3%) of the amount shown in Exhibit A to the COUNTY for administration of the Traffic 7 Impact Fee Fund. DEVELOPER represents, acknowledges, and agrees that the three percent (3%) 8 administrative fee identified in this section 2 is reasonable. 9 3. ANNUAL ADJUSTMENT. The amount of Traffic Impact Fee shall be adjusted on January 15 10 annually beginning in 2024 by a percentage equal to the change in the Engineering News Record 11 Construction Cost Index for 20 Cities for the preceding year as published in the Fourth Quarterly Cost 12 Issue in the preceding December. DEVELOPER represents, acknowledges, and agrees that the annual 13 adjustment and methodology identified in this section 3 are reasonable. 14 4. NOTICES. The persons and their addresses having authority to give and receive notices 15 under this Agreement include the following: 16 COUNTY OFFRESNO DEVELOPER 17 Director of Public Works and Planning Chestnut Westside, LLC 18 County of Fresno 4700 Wilshire Boulevard 19 2220 Tulare Street, 6th Floor Los Angeles, CA 90010 20 Fresno, CA 93721 21 All notices between the COUNTY and DEVELOPER provided for or permitted under this 22 Agreement must be in writing and delivered either by personal service, by first-class United States mail, 23 or by an overnight commercial courier service. A notice delivered by personal service is effective upon 24 service to the recipient. A notice delivered by first-class United States mail is effective three COUNTY 25 business days after deposit in the United States mail, postage prepaid, addressed to the recipient. A 26 notice delivered by an overnight commercial courier service is effective one COUNTY business day 27 28 Traffic Impact Fees — Chestnut Westside, LLC Page 3 of 6 1 after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery 2 instructions given for next day delivery, addressed to the recipient. 3 For all claims arising out of or related to this Agreement, nothing in this section establishes, 4 waives, or modifies any claims presentation requirements or procedures provided by law, including but 5 not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning 6 with section 810). 7 5. VENUE AND GOVERNING LAW. Venue for any action arising out of or related to this 8 Agreement shall only be in Fresno County, California. The rights and obligations of the parties and all 9 interpretation and performance of this Agreement shall be governed in all respects by the laws of the 10 State of California. 11 6. SEVERABILITY. In the event any provisions of this Agreement are held by a court of 12 competent jurisdiction to be invalid, void, or unenforceable, the Parties will use their best efforts to meet 13 and confer to determine how to mutually amend such provisions with valid and enforceable provisions, 14 and the remaining provisions of this Agreement will nevertheless continue in full force and effect without 15 being impaired or invalidated in any way. 16 7. HEADINGS; CONSTRUCTION; STATUTORY REFERENCES. The headings of the 17 sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret 18 this Agreement. This Agreement is the product of negotiation between the Parties. The language of 19 this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against 20 any Party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting 21 Party shall not apply in interpreting this Agreement. All references in this Agreement to particular 22 statutes, regulations, ordinances or resolutions of the United States, the State of California, or the 23 County of Fresno shall be deemed to include the same statute, regulation, ordinance or resolution as 24 hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern 25 the same subject. 26 8. LEGAL AUTHORITY. Each individual executing or attesting this Agreement hereby 27 covenants, warrants, and represents to the other Party: (1) that he or she is duly authorized to execute 28 Traffic Impact Fees—Chestnut Westside, LLC Page 4 of 6 1 and deliver this Agreement on behalf of his or her respective Party in accordance with the following: for 2 the DEVELOPER, its articles of organization and operating agreement; and for COUNTY, its governing 3 legal authority; (2) that this Agreement is binding upon his or her respective Party; and (3) that his or 4 her respective Party is duly organized and legally existing in good standing in the State of California. 5 9. BINDING EFFECT. This Agreement shall be binding upon, and inure to the benefit of, the 6 successors and assigns of the Parties. 7 10. NO THIRD PARTY BENEFICIARIES. Notwithstanding anything else to the contrary herein, 8 the Parties acknowledge and agree that no other person, firm, corporation, or entity shall be deemed an 9 intended third-party beneficiary of this Agreement. 10 11. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of 11 which shall be deemed to be an original, and all of which taken together shall constitute the same 12 instrument. 13 12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the 14 DEVELOPER and COUNTY with respect to the subject matter hereof and supersedes all previous 15 Agreement negotiations, proposals, commitments, writings, advertisements, publications, and 16 understanding of any nature whatsoever unless expressly included in this Agreement. 17 13. ASSIGNMENT. This Agreement shall not be assigned by DEVELOPER without the express 18 written authorization of COUNTY's Director of Public Works and Planning or his/her designee. 19 (Signature page follows.) 20 21 22 23 24 25 26 27 28 Traffic Impact Fees — Chestnut Westside, LLC Page 5 of 6 1 IN WITNESS THEREOF, the Parties have executed this Agreement on the date set forth above. 2 3 DEVELOPER: COUNTY OF FRESNO: 4 Chestnut Westside, LLC, a Delaware limited 5 liability company 6 By: �'�' ----- By. Sal uint , Ch irman of the Board of 7 Jennifer Gandin, Vice President Sup - rs o e County of Fresno 8 (Printed Name, Title) 9 4700 Wilshire Blvd. ATTEST: (Address) 10 Bernice E. Seidel 11 Los Angeles, CA 90010 Clerk of the Board of Supervisors (City, Zip) County of Fresno, State of California 12 13 By: Deputy 14 15 16 17 18 19 20 21 FOR ACCOUNTING USE ONLY: FUND: 0088 22 23 24 25 26 27 28 Traffic Impact Fees—Chestnut Westside, LLC Page 6 of 6 CIVIL CODE§1189 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 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. State of California County of Los Angeles On 2022 before me, MAGGIE MURADIAN, Notary Public Date Here Insert Name and Title of the Officer personally appeared J,iNNI rG P, QAA12)/1\1 Name(s)of Signer(s) Who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed tothewithin 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 instrumentthe person(s), orthe entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY underthe IawsoftheState of California that the foregoing paragraph 6true and correct. MAGGI*my aryPu ic-CalMUPAD oWITNESS m hand and official seal. Notary Public•CaiHornia yLos Anoes CountyCommission#2367154 Comm.Expires Jul 22,2025 Signature Place Notary Seal and/or Stamp Above ignature of Notary Public ©2018 National Notary Association CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 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. State of California 1 County of Frei n o J} On — 0 2 /28 20 23 _ before me, 6 van E mis+en, r1 o fary P t,l_bl i C� , Date Here Insert Name and the Officer personally appeared 6alodDr Qwn+ero Nome(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(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 CYAN EDMISfEN paragraph is true and correct. Notary Public•California I Fresno County WITNESS my hand and official seal. Commission P 2319818 *,My Comm.Expires Jan 1,2026 Signature - Place Notary Seal and/or Stamp Above Signature of Notary Public OPTIONAL — Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer— Title(s): ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer is Representing: Signer is Representing: ©2019 National Notary Association EXHIBIT A MEMORANDUM To: Bert Verrips, AICP From: Tim Miller, P.E. Date: October 3, 2019 Jayne Avenue Pavement Study— Fair Share Roadway Improvements Attributable to Subject: the Construction of the Fresno County Segments of the Jayne Avenue Gen-Tie Line The construction of three solar projects in Kings County and the associated gen-tie line in Kings and Fresno County("projects")will bring additional construction traffic to a portion of Jayne Avenue between CA-33 near Coalinga and the Fresno County/Kings County line. The Jayne Avenue Pavement Evaluation Report(October 3, 2019) recently prepared by Kimley-Horn and Associates examined existing pavement conditions along the corridor and suggested specific roadway maintenance and repair(M&R) applications over the next 10 years. To address wear and tear from all projected truck traffic on the Jayne Avenue study segments, the report identified a total need of$3,553,198 in 2019 dollars to enact a pavement M&R program over the next 10 years to maintain pavement conditions. The objective of the M&R program is to implement pavement maintenance and repair actions that in 10 years will result in roadway conditions that are essentially the same as current roadway conditions along the study segments. The report calculated the proportionate share of truck traffic generated by the projects over the 10-year study period, and estimated that the fair share project contribution to the overall M&R program is $712,041 for the Aquamarine, Chestnut, Solar Blue, and gen-tie projects, a figure that is approximately 20.0% (= $712,041 /$3,553,198) of the total roadway M&R cost over the 10-year study period. In estimating the projects' contributions to overall wear and tear on the roadway, gen-tie traffic volumes were separated from the solar project-related construction traffic. Truck traffic generated by the solar projects and the gen-tie project was quantified by determining the number of additional equivalent single axle loads (ESALs) attributable to the projects. Based on the methodology described in the pavement evaluation report, the ESALs due to project and gen-tie traffic are calculated and summarized in Table 1. Gen-tie traffic accounts for approximately 25.2% of the total project traffic, so the total contribution of gen- tle traffic is estimated at$179,454 (= 25.2% x$712,041). Table 1. ESAL Contributions Contributor Trucks Total ESALs % ESALs Total Projects 23,860 115,300 74.8% Gen-Tie (Fresno and Kings) 7,770 38,850 25.2% Total 31,630 154,150 100.0% Gen-tie traffic primarily involves the transport of materials and monopoles along the gen-tie corridor, and overall truck traffic is estimated based on truck trips per monopole times the number of monopoles. Therefore, in order to determine the Fresno County share of gen-tie truck traffic, the number of Capitol555 00 monopoles in Fresno County(47, which includes 3 poles to be constructed by PG&E) was divided by the total number of monopoles for the entire gen-tie project (104). The Fresno County share is 45.2% (=47/ 104) of total project monopoles and thus the Fresno County portion of gen-tie M&R cost attributable to the Fresno County gen-tie segments is be estimated to be $81,099 (= $179,454 x 45.2%). Similarly, the Fresno County gen-tie portion of the entire project fair share is estimated to be 11.4% (= $81,099/ $712,041). As it relates to the total volume of truck traffic utilizing Jayne Avenue over the 10-year study period (including baseline traffic and all solar and gen-tie project truck traffic), expressed in terms of the corresponding cost of the M&R program over that period, the Fresno County gen-tie contribution is estimated to be 2.3% (= $81,099/$3,553,198). Fresno County—Summary of Estimated Maintenance and Repair (M&R) Fees for WSP Cluster 8 Projects — From Kimley-Horn Studies — Oct. 2019 (as accepted by County of Fresno and Kings County) 11-18-20 Jayne Avenue Pavement Evaluation Report(Final Report)—October 3, 2019. Based on final County direction on analysis methodology, this report arrived at a total fair-share M&R cost attributable to all Cluster 8 projects and the gen-tie to Gates Substation of$712,041. Jayne Avenue Memorandum — Fair Share Roadway Improvements Attributable to the Construction of the Fresno County Segments of the Jayne Avenue Gen-Tie Line (Final)—October 3,2019. Based on the Pavement Evaluation Report (above), this Memo identified the total fair share M&R cost attributable to construction of the entire 15-mile long Gen-Tie line (Fresno and Kings County segments) to be $179,454. The proportionate share attributable to the Fresno Gen-Tie segments only was determined to be$81,099. Fresno County Planning Commission Approval Resolution for UCUP for Construction of Fresno County Segments of the Gen-Tie—November 14, 2019. Mitigation Measure#3 requires payment of the$81,099 fair- share M&R cost for the Fresno County Gen-Tie segments prior to issuance of Building Permits for construction of the Fresno County Gen-Tie segments. The Resolution cites the total M&R cost for the entire Gen-Tie line of $179,454. The Resolution also references the Kimley-Horn Pavement Report and Fair-Share Memorandum (see above) as the source for these fee amounts, indicating acceptance of the report and memo as the basis of the fee amounts for Cluster 8 solar projects and the Gen-Tie line. Calculation of Fair-Share M&R Fees for Cluster 8 Solar Projects and Kings County Gen-Tie. The fair-share fee amounts for the Cluster 8 solar projects and the Kings County Gen-Tie segments were calculated as follows: Kings County Gen-Tie Segments Total Calculated Gen-Tie M&R Cost: $179,454. Minus M&R Fees for Fresno County Gen-Tie: $81,099. Remaining M&R Fees Attributable to Kings County Gen-Tie: $98,355. Cluster 8 Solar Proiects Total Calculated M&R fees for Cluster 8 projects and Gen-Tie: $712,041. Subtract Total M&R Fees Attributable to Gen-Tie Line: 179,454. Remaining M&R Fees Attributable to Cluster 8 Solar Projects: $532,587. Total Megawatts in Cluster 8 Projects: 650 MW M&R Fees per MW: $819.365 1 Calculated Fees for Cluster 8 Projects: Aquamarine: 250 MW X$819.365=$204,841. Solar Blue: 250 MW X$819.365= $204 841. Chestnut: 150 MW X$819.365= $122,905. Amounts Payable to Fresno County for M&R Fees Separate payments for each, as follows: Fresno County Gen-Tie = $81,099.00 (Payable to Fresno County prior to issuance of Fresno County Building Permit for Fresno County Gen-Tie segments.) Aquamarine Solar and Kings County Gen-Tie = $303,196.00 (Payable to Fresno County prior to issuance of Kings County Building Permits for Aquamarine Solar and Kings County Gen-Tie segments.) 2