HomeMy WebLinkAboutAgreement A-23-546 Reimbursement Agreement.pdf 23-0985 Agreement No. 23-546
1 Franchise Reimbursement Agreement
2 This Agreement is made and entered into this 10th day of October 2023, by and
3 between the County of Fresno, a political subdivision of the State of California ("County"), and Toro
4 Energy of California LLC, a California limited liability company ("Company"), hereinafter sometimes
5 referred to collectively as the "Parties" or individually as a "Party."
6 WITNESSETH
7 WHEREAS, Company desires a nonexclusive franchise to construct, install, maintain, operate,
8 repair, renew, and remove appurtenances necessary to transfer landfill gases in, along, upon, and under
9 the public streets and highways within the unincorporated area of the County of Fresno ("Franchise");
10 and
11 WHEREAS, this Agreement is being entered into to allow Company to place sufficient funds in a
12 trust account with the County to cover the actual expenses and costs (collectively, "expenses") incurred
13 by the County in the preparation of this Agreement, the proposed Franchise ordinance and any other
14 Franchise- related documents, as well as any additionally related work which might be necessary for the
15 completion thereof("Project"); and
16 WHEREAS, Company is willing to deposit funds with the County as described in this Agreement
17 so that the County can proceed with the drafting and preparation of the proposed Franchise ordinance
18 and other Franchise-related documents, as provided herein.
19 NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein
20 contained, it is hereby agreed as follows:
21 I. GENERAL PROVISIONS
22 A. This Agreement will not be construed to create a principal-agent, master-servant, employer-
23 employee, partnership, joint-venture, or any other associational relationship between the County and
24 Company. Each Party and its respective officers, agents and employees shall act in an independent capacity
25 in all matters and correspondence between the Parties in connection with this Agreement.
26 B. It is understood and agreed between the Parties that the execution of this Agreement and
27 the County's acceptance of reimbursement hereunder does not constitute the granting of a franchise or any
28 guarantee thereof. Company understands and expressly agrees and acknowledges that this Agreement
1 does not obligate the County to grant a franchise to Company, and that it is neither a representation nor a
2 guarantee as to whether the County ultimately will adopt a franchise ordinance, and further that it is not
3 intended to prescribe the prospective terms of any such franchise or franchise ordinance.
4 C. It is understood and agreed between the Parties that the execution of this Agreement and
5 the County's acceptance of reimbursement hereunder does not constitute a commitment to (i) approve any
6 "project" as that term is defined by the California Environmental Quality Act (Div. 13 of the Pub. Res. Code,
7 commencing with § 21000) ("CEQA"), (ii) to construct or permit construction of any gas or other
8 infrastructure, or(iii)to undertake any action which might have a significant effect on the environment within
9 the meaning of CEQA. Company understands and expressly agrees and acknowledges that this Agreement
10 does not obligate the County to undertake any of the acts described in this Section I.C, subsections (i)
11 through (iii), and that it is neither a representation nor a guarantee as to whether the County ultimately will
12 undertake those acts, and further that it is not intended to prescribe the prospective terms of any "project
13 approval"within the meaning of CEQA.
14 D. This Agreement is solely intended by the Parties to create a government funding mechanism
15 pursuant to section 15378 subdivision (b)(4)of Title 14 of the California Code of Regulations. It is the Parties'
16 intention that, to the greatest extent permitted by law, this Agreement shall not be interpreted to require a
17 commitment by either Party to any act which would constitute a "project," as that term is defined under
18 CEQA. If any clause or provision of this Agreement is determined by a court having jurisdiction to require a
19 commitment by either Party which would constitute a project under CEQA, that clause or provision shall be
20 renegotiated by the Parties, in good faith, subject to the express intention of the Parties provided herein, and
21 the Agreement shall be amended by the Parties so that such provision is in accordance with this Section
22 I.D.
23 E. Neither Party may assign, transfer, or sub-contract this Agreement, nor any of its respective
24 rights or duties hereunder, without prior written consent of the other Party.
25 F. The persons and their addresses having authority to give and receive notices under this
26 Agreement include the following, who also will serve as the Parties' respective Contract Administrators:
27 N
28 W
1 For the County:
Erin Haagenson, Principal Staff Analyst
2 County of Fresno
3 2220 Tulare St. 6th Floor
Fresno, CA 93721
4 559-600-4052
ehaagenson@fresnocountyca.gov
5
For the Company:
6 Kent Hawkins, President
Toro Energy of California, LLC
7 2151 Michelson Drive, Suite 164
8 Irvine, CA 92612
714-305-5292
9 kent(@colonyenergypartners.com
10 For all claims arising out of or related to this Agreement, nothing in this section establishes, waives,
11 or modifies, any claims presentation requirements or procedures provided by law, including but not limited
12 to the Government Claims Act (Div. 3.6 of Tit. 1 of the Gov. Code, commencing with § 810).
13 G. Each Party, or the Party's original Contract Administrator, may designate another employee
14 of that organization to serve in that capacity without amending this Agreement. For the County, the authority
15 to change its Contract Administrator is delegated to the Director of the Department of Public Works and
16 Planning. Any such assignment of duties will be noticed to the other Party.
17 H. Any and all notices, consents, approvals, requests, correspondences, documents, reports,
18 demands and other communications (collectively, "Notice") between the Parties will be in writing and
19 delivered to the other Party's respective Contract Administrator or his/her designee either by personal
20 service, by first-class United States mail, by overnight commercial courier service, or by portable document
21 format(PDF)document attached to an email.A Notice delivered by personal service is effective upon service
22 to the recipient. A Notice delivered by first-class United States mail is effective three County business days
23 (Monday through Friday, excepting any legal holiday) after deposit in the United States mail, postage
24 prepaid, addressed to the recipient. A Notice delivered by an overnight commercial courier is effective one
25 County business day after deposit with the overnight commercial courier service, delivery fees prepaid, with
26 delivery instructions for next-day delivery, addressed to the recipient. A Notice delivered by PDF document
27 attached to an email is effective when transmission is completed (but, if such transmission is completed
28 outside of County business hours, then such delivery will be deemed to be effective at the beginning of the
1 next County business day), provided that the sender maintains a machine record of the completed
2 transmission.
3 II. DUTIES OF COMPANY
4 A. Company agrees to pay to the County the expenses incurred by the County in connection
5 with the Project, including the processing and reviewing of this Agreement, the proposed franchise
6 ordinance, and any other franchise-related documents.
7 B. Within fourteen (14) calendar days of approval of this Agreement by the County's Board of
8 Supervisors, Company will deposit with the County the sum of Twelve Thousand Dollars($12,000.00),which
9 is the estimated expenses of the County's effort in processing the Project. This sum will hereinafter be
10 referred to as "Deposit."
11 C. The full amount of the Deposit, as specified in the immediately preceding Section 11.13, will be
12 held in trust, and will be used to reimburse the County for expenses incurred during the course of the
13 County's performance under this Agreement.
14 D. If the expenses incurred by the County exceed the Deposit amount specified in Section 11.13,
15 Company agrees to pay any balance accrued before the Project is finished pursuant to 111, subsections D
16 and E below, or the Agreement is terminated, and Company's obligation to do so will survive the termination
17 of this Agreement.
18 E. Company represents, warrants, and covenants that each person executing this Agreement
19 for Company is the duly authorized representative of Company, and is fully authorized by Company to legally
20 bind Company to this Agreement according to its terms and conditions, and to make on its behalf all of the
21 representations, covenants, warrantees, and agreements set forth herein.
22 F. Company represents, warrants, and covenants that Company is duly authorized to transact,
23 in the State of California, the type of business which is covered by the subject matter of this Agreement.
24 III. DUTIES OF THE COUNTY
25 A. County staff will prepare and process all staff reports, notices, resolutions, agreements, and
26 any other documents as are necessary or appropriate in connection with its public presentation(s)
27 recommending the adoption of a proposed franchise ordinance. County will publish and distribute all notices
28 required by law.
1 B. The County will keep accurate records of its expenses incurred in processing and reviewing
2 the proposed Project.
3 C. The County will provide to Company an accounting of time and expenses attributable to the
4 expenses incurred under this Agreement.
5 D. The Parties acknowledge that the actual expenses under this Agreement may exceed the
6 Deposit. If it becomes evident that the Deposit amount will be insufficient,the County may request the deposit
7 of additional funds and, at the option of the County's Contract Administrator, or designee, the County may
8 either suspend work until such additional funds are deposited, or, at the County's option, the Company may
9 continue with the work and bill Company on a monthly basis, in which case Company will make payment to
10 the County within ten (10)calendar days of receipt of the invoice. Failure by Company to make any payment
11 requested by the County within the allotted time will constitute sufficient grounds for the County to terminate
12 the Agreement.
13 E. It is expressly understood and agreed that if the actual expenses exceed the amount of the
14 Deposit, the County will not be obliged to further proceed with the Franchise preparation, as described in the
15 recitals above, unless and until Company has remitted additional payment to the County, in such amount as
16 is determined by the County's Director of Public Works and Planning, or designee, as a revised expense
17 estimate, less any portion already paid by Company. As provided in the immediately preceding Section III.D,
18 at the option of the County's Contract Administrator, the work may be continued and Company invoiced.
19 F. The County will refund any unused portion of funds deposited by Company, once a full
20 accounting can be made, within a reasonable period of time after either completion of the Project or the
21 termination of this Agreement.
22 IV. TERM AND TERMINATION
23 A. This Agreement is effective retroactive to the date of May 1, 2023, and unless it is earlier
24 terminated pursuant to Section III.D, or in accordance with the provisions of either Sections B or C of this
25 Article IV below, it will continue in full force and effect until the total expenses of the County's performance
26 regarding the Franchise preparation, as described in the recitals above, has been finally determined by the
27 County, and all such expenses have been paid in full to the County by Company. It is understood by the
28 Parties that work begun prior to the execution of this Agreement, including the preparation hereof, will be
1 eligible for reimbursement under this Agreement, which is the reason this Agreement is being given
2 retroactive effect as provided above.
3 B. The County and Company will perform their respective obligations under this Agreement with
4 due diligence. Either Party may terminate this Agreement without cause upon thirty (30) days written notice
5 to the other; provided, that Company's obligation to pay the County for all expenses incurred by the County
6 for its performance, as described in the recitals above, through the date of its receipt of such notice, will
7 survive the termination of this Agreement, and all such outstanding charges will promptly be paid in full to
8 the County.
9 C. This Agreement may be terminated or modified by the mutual written consent of the Parties.
10 V. GOVERNING LAW
11 This Agreement will be deemed to be performed only in Fresno County, California. Venue for any
12 action which might arise out of or related to this Agreement will only be in Fresno County, California. The
13 rights and obligations of the Parties and all interpretation and performance related to the Franchise
14 preparation described in this Agreement will be governed in all respects by the laws of the State of California.
15 VI. NO THIRD PARTY BENEFICIARIES
16 This Agreement does not and is not intended to confer any rights or remedies upon any person other than
17 the Parties hereto.
18 VI I. ENTIRE AGREEMENT
19 This Agreement constitutes the entire Agreement between the County and Company with respect to
20 the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings,
21 advertisements, publications, and understandings, of any nature whatsoever unless expressly included in
22 this Agreement.
23 VIII. SEVERABILITY
24 Should any provision of this Agreement be found or deemed invalid by a final and binding judicial
25 determination, all other provisions which are otherwise lawful will remain in full force and effect, and to this
26 end the provisions of this Agreement are hereby declared to be severable.
27 IX. ELECTRONIC SIGNATURES:
28 The Parties agree that this Agreement may be executed by electronic signature as provided in this
1 section.
2 A. An "electronic signature" means any symbol or process intended by an individual signing this
3 Agreement to represent their signature, including but not limited to: (1)a digital signature; (2)a faxed version
4 of an original handwritten signature; or (3) an electronically scanned and transmitted (for example by PDF
5 document)version of an original handwritten signature.
6 B. Each electronic signature affixed or attached to this Agreement: (1) is deemed equivalent to
7 a valid original handwritten signature of the person signing this Agreement for all purposes, including but not
8 limited to evidentiary proof in any administrative orjudicial proceeding; and (2) has the same force and effect
9 as the valid original handwritten signature of that person.
10 C. The provisions of this section satisfy the requirements of Civil Code section 1633.5,
11 subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning
12 with section 1633.1).
13 D. Each Party using a digital signature represents that it has undertaken and satisfied the
14 requirements of Government Code section 16.5, subdivision (a), paragraphs(1)through (5), and agrees that
15 each other Party may rely upon that representation.
16 E. This Agreement is not conditioned upon the Parties conducting the transactions under it by
17 electronic means and either Party may sign this Agreement with an original handwritten signature.
18 (Signature page follows.)
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IN WITNESS WHEREOF the Parties hereto have caused this Agreement to be executed as of the
2 day and year first above written_
3
4 TORO ENERGY OF CALIFORNIA. LLC COUNTY OF FRESNO
5
6 By.
Matt Schmitt
7 VP Project Development Sal Quintero. Chairman of the Board of
8 2151 Michelson Drive, Suite 164 Supervisors of the County of Fresno
Irvine, CA 92612
9
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Attest:
Bernice E_ Seidel
12 Clerk of the Board of Supervisors
County of Fresno. State of California
13
14
By_
15 Deputy
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19 FUND: 0085
SUBCLASS: 17406
20 ORG: 1186
21 ACCOUNT: 5800
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i
RESOLUTIONS BY THE UNANIMOUS WRITTEN CONSENT OF THE MANAGERS OF
TORO ENERGY OF CALIFORNIA AA,LLC I
As of September 26, 2022
I
The undersigned, being the sole manager (the 'Manager") of Toro Energy of California AA,
LLC, a Texas limited liability company (the "Company"),hereby declares that,as ofthe date set
forth above the following resolutions shall be consented to, approved of, and adopted to the
same extent and to have the same force and effect as if adopted at a meeting of the
Managers duly called and held for the purpose of acting upon proposals to adopt such resolutions: j
I
Officers:
RESOLVED, that the following individuals are appointed as officers of the Company to serve in j
such capacities until the earlier to occur of their resignation,removal, or their respective i
successors are duly elected and qualified:
Kent Hawkins,President
Matt Schmitt,VP
Jake Terada,VP
General Implementing Authority:
RESOLVED FURTHER, that the Managers and officers of the Company are authorized,
empowered, and directed to do all other things and acts, to execute and deliver all other
instruments, documents, and certificates, and to pay all costs, fees, and taxes as may be, in their
sole discretion, necessary, proper or advisable in order to carry out and comply with the
purposes and intent of the foregoing resolutions; and that all of the acts and deeds of the
Managers and officers of the Company which are consistent with the purposes and intent of
such resolutions be and the same hereby are, in all respects, approved, confirmed, and
adopted as the acts and deeds of the Company.
IN WITNESS WHEREOF, the undersigned have executed this consent effective as of the date
first written above.
MANAGER:
West Coast RNG, LLC
By: Colony Energy Partners, LLC Its Manager
By:
Kent H i ,, naging Member