HomeMy WebLinkAboutAgreement A-16-095 with JPJ Inc..pdf
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AGREEMENT TO TEMPORARILY
LIQUIDATE EXCESS CAPACITY COST
This agreement is dated _______________, 2016, and is between the JPJ
Incorporated, a California Corporation doing business at 7030 North Fruit Avenue, Suite
101, Fresno, California 93711 (JPJ) and the COUNTY OF FRESNO, a political
subdivision of the State of California (the County).
RECITALS
On December 19, 2000, the County Board of Supervisors adopted the Millerton
New Town Infrastructure Plan (the Plan) for the Millerton New Town Infrastructure Plan
Area (the Plan Area), which is roughly coextensive with County Service Area No. 34
(CSA 34). The Plan details the requirements for domestic water, wastewater, drainage,
and reclaimed water use, and specifies the systems and facilities to be installed to serve
planned developments, within the Plan Area. The Plan also provides implementation
procedures for the installation and service of those systems and facilities, and
establishes a method to spread to developers owning land within the Plan Area (the
Landowners) the cost of constructing all of the systems and facilities required by the
Plan.
With respect to wastewater treatment facilities required by the Plan (the Facility),
the Landowners desired that the County would accept and commission the Facility with
treatment capacity sufficient for full build-out of the Plan Area as contemplated in the
Plan. The County accepted and commissioned the Facility as the Landowners desired,
even though full build-out had not yet occurred, but on the condition that the
Landowners, or some of them, agreed to be financially responsible for the cost of the
Facility’s operation and maintenance for capacity that exceeds what is required for
current build-out.
By the “Agreement and Guaranty” dated January 31, 2012, between JPJ and the
County (the Guaranty; identified as County agreement 12 -057), JPJ agreed to “Pay the
costs of operation and maintenance of the Facility that are over and above contributions
from all other applicable sources of income for wastewater services in CSA No. 34, as
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listed in Paragraph III.A.7. herein below. There shall be consultation between the
County and [JPJ] to ensure that available reserve funds have been utilized in a legally
appropriate manner to fund non-warranty Facility equipment failures or other non-
routine operational and maintenance expenses. [JPJ] shall be responsible . . . for the
entire cost of operation and maintenance of the Facility in excess of revenues received
from other applicable sources.” (Paragraph II.A.4. of Exhibit A to the Guaranty.)
Paragraph III.A.7. of Exhibit A to the Guaranty identified applicable sources of income
for operations and maintenance of the Facility to include, without being limited to, “a.
Applicable and legally approved user fees from developed lots and applicable and
legally approved assessments on developed and undeveloped lots, including the Golf
Course within [CSA 34, zone A (Brighton Crest)]. [¶] b. Any applicable developer
financing agreements. [¶] c. [JPJ].”
Under Proposition 218, the County may not impose assessments that exceed the
reasonable cost of the proportional special benefit conferred on a parcel by a public
improvement, the Facility, or the maintenance and operation of a public improvement.
Similarly, the COUNTY may not impose user fees for property-related services,
including wastewater service, that exceed the proportional cost of the service
attributable to the parcel upon which the fee is imposed.
Full build-out of the Plan Area as contemplated in the Plan has not yet occurred,
which means there remains excess capacity in the Facility that under Proposition 218
may not be charged to owners of developed lots, and JPJ remains obligated for Excess
Capacity Cost.
On March 1, 2016, the County conducted a public protest hearing under
Proposition 218 to adjust the wastewater user fees charged to property owners in CSA
34, zone A (Brighton Crest) and zone C (Bella Vista). Those fees include the cost of
operating and maintaining the Facility for the developed lots in Brighton Crest and Bella
Vista. Under those fees, the County estimates that the Excess Capacity Cost for the first
two years (from July 2016 through June 2018) is $21.53 per connection per month.
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During that period, the County is willing to receive that amount for the Excess Capacity
Cost, and JPJ desires to share the Excess Capacity Cost in that amount.
THE PARTIES THEREFORE AGREE AS FOLLOWS:
1. Temporary Liquidation of Excess Capacity Cost. For the period of July
2016 through June 2018 (the Relevant Period), the County will receive, and JPJ is liable
to pay, as the Excess Capacity Cost, the amount of $21.53 per connection per month.
For purposes of this agreement, a “connection” is a developed lot in Brighton Crest or
Bella Vista for which the Facility is available to provide wastewater service.
2. Invoices. For each bi-monthly billing period during the Relevant Period for
wastewater user fees in Brighton Crest and Bella Vista, the County shall determine the
number of connections, multiply that by $21.53 per month to determine Excess Capacity
Cost for that billing period, and then submit to JPJ an invoice for Excess Capacity Cost
for that billing period. If any Excess Capacity Cost previously invoiced under this
agreement remains outstanding when an invoice is issued, the County shall include that
amount, plus interest as provided in section 4 of this agreement, as separate line items
on the invoice.
3. Payments. Within 30 calendar days after JPJ has received each invoice
from the County under this agreement, JPJ shall remit to the County the payment of the
entire Excess Capacity Cost shown on the invoice.
4. Interest on Late Payments. If any Excess Capacity Cost invoiced under
this agreement is not paid within 30 calendar days after JPJ has received the invoice,
the amount invoiced shall accrue interest at the rate of 1.5 percent per month while it
remains outstanding.
5. Notices. The persons and their addresses having authority to give and
receive notices (including invoices) provided for or permitted under this agreement
include the following:
///
///
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For the County:
County of Fresno
Department of Public Works and Planning
Resources Division, Special Districts
2220 Tulare Street, 6th Floor
Fresno, California 93721
For JPJ:
John Bonadelle
JPJ Incorporated
7030 North Fruit Avenue, Suite 101
Fresno, California 93711
All notices between the County and JPJ provided for or permitted under this agreement
must be in writing and delivered either by personal service, by first-class United States
mail, by an overnight commercial courier service, or by telephonic facsimile
transmission.
(A) A notice delivered by personal service is effective upon service to
the recipient.
(B) A notice delivered by first-class United States mail is effective three
County business days after deposit in the United States mail, postage prepaid,
addressed to the recipient
(C) A notice delivered by an overnight commercial courier service is
effective on County business day after deposit with the overnight commercial
courier service, delivery fees prepaid, with delivery instructions given for next day
delivery, addressed to the recipient.
(D) A notice delivered by telephonic facsimile is effective when
transmission to the recipient is completed (but, if such transmission is completed
outside of County business hours, then such delivery shall be deemed to be
effective at the next beginning of a County business day), provided that the
sender maintains a machine record of the completed transmission.
For all claims arising from or related to this agreement, nothing in this agreement
establishes, waives, or modifies any claims presentation requirements or proced ures
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provided by law, including but not limited to the Government Claims Act (Division 3.6 of
Title 1 of the Government Code, beginning with section 810).
6. No Modification of Guaranty. This agreement does not amend or modify
the Guaranty. This agreement has no effect on the parties’ obligations under the
Guaranty except to liquidate and make JPJ liable for the Excess Capacity Cost during
the Relevant Period as provided in this agreement. This agreement is not a “successor
agreement” as that term is used in section 3 of the Guaranty.
7. Term. This agreement is effective on the date stated in the introductory
paragraph and terminates on July 31, 2018; provided, however, that JPJ’s obligations to
pay Excess Capacity Cost arising during the Relevant Period and to pay any interest
under section 4 of this agreement survive the termination of this agreement.
8. Indemnity. For purposes of this section, “losses” includes all claims,
causes of action, demands, liabilities, damages, costs, expenses (including attorney
fees and costs), and losses of any kind to the County, JPJ, or to any other person or
entity. JPJ shall indemnify the County (including its officers, agents, and employees)
against any losses that arise from or relate to the performance or failure to perform by
JPJ (or any of their officers, agents, or employees), or any of them, under this
agreement, without regard to any negligence of the County. If requested by the County,
JPJ shall defend actions or proceedings brought against the County (including its
officers, agents, and employees) for any losses. The County may conduct or participate
in its own defense, at its own cost, without affecting the JPJ’s obligation to indemnify the
County. JPJ’s obligations under this section survive the termination of this agre ement.
9. Disclosure of Self-Dealing Transactions. This section applies if JPJ is
operating as a corporation, or during the term of this agreement changes its status to
operate as a corporation. If any member of JPJ’s board of directors is party to a self -
dealing transaction during the term of this agreement, he or she shall disclose the
transaction by completing and signing a “Self-Dealing Transaction Disclosure Form”
(Attachment A to this agreement) and submitting it to the County before commencing
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the transaction or immediately after. “Self -dealing transaction” means a transaction to
which JPJ is a party and in which one or more of its directors, as an individual, has a
material financial interest.
10. Modification. This agreement may not be modified, and no waiver is
effective, except by another written agreement that is signed by all parties.
11. Non-Assignment. JPJ may not assign their rights or delegate their
obligations under this agreement without the prior written consent of the County.
12. No Waiver by Receipt. Receipt of any payment by the County under this
agreement is not a waiver of any breach or default by JPJ and does not prejudice or
impair any remedy to the County with respect to any breach or default.
13. Governing Law. The laws of the State of California govern all matters
arising from or related to this agreement.
14. Jurisdiction and Venue. This agreement is signed and performed in
Fresno County, California. JPJ consents to California jurisdiction for actions arising from
or related to this agreement, and, subject to the Government Claims Act, all such
actions must be brought and maintained in the Fresno County Superior Court.
15. Construction. The final form of this agreement is the result of the parties’
combined efforts. If anything in this agreement is found by a court of competent
jurisdiction to be ambiguous, that ambiguity is to be resolved by construing the terms of
this agreement according to their generally accepted meaning, and not by construing
the terms of this agreement for or against either party.
16. Section Titles. The section titles in this agreement are for convenience
only and are not part of this agreement.
17. Severability. If anything in this agreement is found by a court of
competent jurisdiction to be unlawful or otherwise unenforceable, the balance of this
agreement remains in effect.
18. Entire Agreement. Subject to section 6 of this agreement, this agreement
is the entire agreement between JPJ and the County with respect to the subject matter
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of this agreement, and it supersedes all previous negotiations, proposals, commitments,
writings, advertisements, publications, and understandings of any nature unless those
things are expressly included in this agreement.
19. Authority. Each person who signs this agreement represents and
warrants by signing that (A) he or she is duly authorized to execute and deliver this
agreement on behalf of the party for which he or she signs and (B) his or her signing of
this agreement is binding upon the party for which he or she signs. Each person who
signs this agreement on behalf of JPJ acknowledges by signing that the County is
relying upon the representations and warranties above in entering into this agreement.
20. Counterparts. This agreement may be executed in counterparts, each of
which is deemed an original, but all of which together constitute the same agreement.
[SIGNATURE PAGE FOLLOWS]
1 The parties are signing this agreement on the date stated in the introductory paragraph.
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(Aut rized signature)
~~l-IN A· ~oNAb£"-t
(Print name and title)
ATIEST:
BERNICE E. SEIDEL, Clerk
Boar~ Supervi~or~
By:::i.~-C~~
~~ uty
ORG/FUND/SUBCLASS/ACCOUNT
9181/0830/16200/5068
9254/0830/1621 0/5068
8
Ernest Buddy Mendes
Chair, Board of Supervisors
Reviewed and recommended for approval.
Alan Weaver
Director of Public Works and Planning
Approved as to accounting form.
Vicki Crow, C.P.A.
AUDITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
Approved as to legal form.
Daniel C. Cederberg
COUNTY COUNSEL
~
ATTACHMENT A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporat ion is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self -dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4) Describe in detail why the self -dealing transaction is appropriate based on ap plicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self -dealing transaction
described in Sections (3) and (4).
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
(5) Authorized Signature
Signature: Date: