HomeMy WebLinkAboutAgreement A-15-048 with Placer Solar, LLC.pdf..
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AGREEMENT NO. 15-048
1 AMENDMENT TO AND TERMINATION OF INDE'MNIFICATION AGREEMENT
· 2 TinS AMENDMENT TO INDEMNIFICATION AGREEMENT is entered into this 10th
3 day of __ F~e-'-br_u.;..ary......_ __ , 2015 by and between the COUNTY OF FRESNO, a political
4 subdivision of the State of California (hereinafter "COUNTY''), and Placer Solar, U.C, a California
5 limited liability company (hereinafter "APPLICANT') located at 100 Century Center Court, Suite
6 SOl, San Jose, CA, 95112. COUNTY and APPLICANT may be referred to collectively hereafter
7 as "Parties" to this Agreement.
8 WITNESSETH:
9 WHEREAS, APPLICANT applied to COUNTY for one or more land use approvals to
10 construct a photovoltaic solar-power generation facility and related improvements on a 164.52-acre
11 parcel (the "Project") within Fresno County; and
12 WHEREAS, on October 23, 2012, COUNTY's Board of Supervisors adopted Resolution
13 12-309, which ( 1) approved Initial Study Application No. 6394 and the related Mitigated Negative
14 Declaration, and (2) approved Unclassified Conditional Use Permit Application No. 3321, which
15 approved the Project; and
16 WHEREAS, a condition of approval of the Project required that APPUCANT enter into an
17 indemnification agreement (hereinafter the "Indemnification Agreement'') with COUNTY whereby
18 APPUCANT agreed to hold hannless, defend, and indemnify COUNTY from and against any
19 legal challenges to the Project; and
20 WHEREAS, the Indemnification Agreement entered into between COUNTY and
21 APPLICANT on August 1, 2013, satisfied this condition of approval of the Project; and
22 WHEREAS, the Indemnification Agreement provides that, among other things, as security
23 to COUNTY for APPLICANT'S faithful perfonnance of its obligations herein to defend,
24 indemnify, and hold hannless the COUNTY, APPLICANT will provide to COUNTY an
25 irrevocable standby letter of credit or bond in the amount of One-Hundred-and-Fifty Thousand
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1 Dollars and No Cents ($150,000 .00); and
2 WHEREAS, APPLICANT provided COUNTY with an irrevocable standby letter of credit
3 issued by Wells Fargo Bank, N.A., in theamountofOne-Hundred-and-FiftyThousandDollars and
4 No Cents ($150,000.00) (the "Wells Fargo Letter of Credit"); and
5 WHEREAS, on November 26, 2012, the Friends of the Swainson's Hawk ("FOSH") sued
6 COUNTY in Fresno County Superior Court, challenging COUNTY's approval of the Project (the
7 "Superior Court Action"); and
8 WHEREAS, APPLICANT was named as the real party in interest in the Superior Court
9 Action; and
10 WHEREAS, on September 8, 2014, APPLICANT, through its legal counsel, submitted a
11 letter to COUNTY, which stated that APPLICANT elected to decline to proceed with the Project
12 and requested that the Board of Supervisors rescind its approval of the Project; and
13 WHEREAS, APPLICANT and FOSH reached a settlement, which provided that FOSH
14 would dismiss the Superior Court Action with prejudice within ten (10) days of the Board of
15 Supervisors rescinding its approval of the Project, in exchange for APPLICANT paying for
16 FOSH's attorney's fees and costs;
17 WHEREAS, on October 28, 2014, the Board of Supervisors granted APPLICANT's
18 request, and adopted Resolution 14-419, which rescinded the approval previously granted to the
19 Project; and
20 WHEREAS, on October 28,2014, FOSH filed a Request for Dismissal with prejudice of
21 the Superior Court Action; and
22 WHEREAS, APPLICANT represents that it has paid all of FOSH's attorney's fees and
23 costs related to the Superior Court Action; and
24 WHEREAS, on October 29, 2014, the Superior Court entered dismissal with prejudice of
25 the Superior Court Action; and
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WHEREAS, in light of the Board of Supervisors' rescission of approval of the Project, the
dismissal with prejudice of the Superior Court Action, and APPLICANT's payment of FOSH's
attorney's fees and costs, APPLICANT has requested that the Parties mutually agree to terminate
the Indemnification Agreement according to the terms of this Amendment.
NOW, THEREFORE, in consideration of their mutual promises, covenants and conditions,
hereafter set forth, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. APPLICANT covenants, represents, and warrants to COUNTY that APPLICANT
has paid all of FOSH' s attorney's fees and costs related to the Superior Court Action. The
provisions of this paragraph 1 shall survive termination of the Indemnification Agreement.
2. That Indemnification Agreement Paragraph 7, COVENANT NOT TO SUE, be
12 amended by inserting the following provision after subdivision (e):
13 "(f) The provisions of this Paragraph 7 shall survive termination of this
14 Agreement."
15 3. Within ten (10) County business days following the Parties' execution of this
16 Amendment, COUNTY's Director of Public Works and Planning, or his designee, will mail the
17 original Wells Fargo Letter of Credit to Wells Fargo N.A., to the address specified in the Wells
18 Fargo Letter of Credit, 100 Century Center Court, Suite 501, San Jose, CA 95112. The provisions
19 of this paragraph 3 shall survive termination of the Indemnification Agreement.
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1 4. That the Parties mutually agree to invoke the provisions of Paragraph 8(a)(i) of the
2 Indemnification Agreement ("TERMINATION OF AGREEMENT") and terminate the
3 Indemnification Agreement effective the date first written above, at page 1, lines 2-3 of this
4 Amendment, thereby releasing Applicant of all of its Obligations under the Indemnity Agreement
5 except as otherwise provided in Paragraph 2 above.
6 IN WITNESS WHEREOF, APPLICANT and COUNTY hereby execute this Amendment
7 to Indemnification Agreement.
8 ATTORNEY:
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PLA~SOLAR,LLC
10 By: M.cJL-
Name: Michael Nelson
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Title: Secretary
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14 By:
Na
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Title: Treasurer
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COUNTY OF FRESNO
Date: Jj11/ I 5
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BERNICE SEIDEL, Clerk
BOARD OF SUPERVISORS
REVIEWED AND RECOMMENDED
FOR APPROVAL:
ALAN WEAVER , Director
Department of Public Works and Planning
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG,
COUNTY COUNSEL
By (l_JJ LJ!