HomeMy WebLinkAboutAgreement A-17-212 with RE Tranquillity 8 LLC.pdf
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AGREEMENT REGARDING REPAIRS TO COUNTY ROADS
THIS AGREEMENT is entered into this _______ day of _______________,
2017, by and between the County of Fresno, a political subdivision of the State of California,
(hereinafter “County”) and RE Tranquillity 8 LLC, (hereinafter “Developer”) a California limited
liability company.
W I T N E S S E T H:
WHEREAS, on October 9, 2014, pursuant to County Resolution No. 12466,
subject to the conditions listed therein, County’s Planning Commission certified Environmental
Impact Report No. 6730 for the Tranquillity Solar Generation Facility (State Clearinghouse No.
2013111056), conditionally approved eight separate conditional use permits, Unclassified
Conditional Use Permit (“CUP”) Nos. 3451 through 3458, and adopted a Mitigation Monitoring
and Reporting Plan and Condition Compliance Matrix ("Monitoring Plan"). The Monitoring Plan
is attached hereto as Exhibit A, attached hereto and incorporated herein by reference; and
WHEREAS, the Tranquillity Solar Generation Facility will be situated on that real
property commonly described as Eleven (11) parcels located south of W. Manning Avenue,
north of W. Nebraska Avenue, east of S. San Bernardino Avenue, and west of S. Monterey
Avenue on approximately One Thousand Six Hundred Fifty Six and 58/100 (1,656.58) acres in
western unincorporated Fresno County (the “Property”), as more particularly described on
Exhibit B, attached hereto and incorporated herein by reference; and
WHEREAS, this Agreement relates to CUPs 3452, 3453, 3454, 3455, 3456,
3457, and 3458 (hereafter referred to as the “Project”), which are owned by certain subsidiary
entities of Developer (the “Owners”); and
WHEREAS, the Owners will be constructing their respective portions of the
Project, consisting of the construction and operation of solar PV power plants capable of
generating up to 200 MW and including up to 200 MW of energy storage capacity in
unincorporated western Fresno County; and
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WHEREAS, as part of the preparation of the Environmental Impact Report (EIR)
for the Project, a Traffic Impact Study was prepared that examines and describes the potential
for traffic and circulation related impacts of the Project; and
WHEREAS, the traffic and trip generation analysis concluded that truck trips
related to the construction of the Project may result in damage to County maintained roads,
specifically segments of Manning Avenue between the Ohio and Monterey Avenue alignments
(hereafter referred to as “Roads”); and
WHEREAS, Mitigation Measure 4.18-1 of the Monitoring Plan requires, among
other things, that Developer “enter into a secured agreement with Fresno County to ensure that
any County roads that are demonstrably damaged by project-related activities are promptly
repaired and, if necessary, paved, slurry sealed, or reconstructed as per the requirements of the
state and/or Fresno County”; and
WHEREAS, this Agreement is being entered into to satisfy the requirement of
Mitigation Measure 4.18-1 recited immediately above.
NOW, THEREFORE, in consideration of the foregoing recitals and for good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
Developer and the County, each of which is a “Party” to this Agreement and collectively are
“Parties” to this Agreement, agree as follows:
AGREEMENT
SECTION 1. OBLIGATIONS OF DEVELOPER
The obligations of Developer under this Agreement are:
A. Not less than 1 day prior to the initial use or transportation of heavy
equipment or large construction vehicles on or over the Roads for the Project, Developer shall
obtain a visual recording, which documents the then current physical conditions of the Roads
(hereafter a “First Video Log”). Prior to the County’s issuance of a building permit authorizing
the construction of the Project, Developer shall submit a true and correct copy of the First Video
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Log saved to a digital video disc (“DVD”), to:
Development Services Manager
c/o Will Kettler
County of Fresno
2220 Tulare Street, Sixth Floor
Fresno, California 93721
B. Not less than 1 day prior to the initial use or transportation of heavy
equipment or large construction vehicles on or over the Roads for the Project, Developer shall
prepare and submit a Construction Traffic Control Plan to the Road Maintenance and Operations
Division of the Department of Public Works and Planning and obtain all necessary permits
required at such time for work within the road right of way per the requirements outlined in
adopted Mitigation Measure 4.18-1 of the Monitoring Plan for Unclassified Conditional Use
Permit Nos. 3451 – 3458 as adopted by the Fresno County Planning Commission on October
28, 2014. The Project Developer shall submit such plans to:
Road Maintenance and Operations Manager
c/o Darren Findley
County of Fresno
2220 Tulare Street, Sixth Floor
Fresno, California 93721
C. Not more than ten (10) days prior to applying to the Department
of Public Works and Planning for a Certificate of Occupancy for the Project, Developer shall:
i. Obtain a visual recording, which documents the then
current physical conditions of the Roads (hereafter the “Second Video Log”);
and
ii. Developer shall, at its sole cost and expense, repair or
replace the Roads if it they are destroyed or damaged as a result of the
Developer’s construction of the Project such that the condition of the Roads
following Developer’s repair or replacement thereof is in a condition at least
equivalent to the condition prior to the construction of the Project; provided
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that prior to conducting repairs or replacement of any public facility,
Developer shall first obtain Director’s approval for such work; and
iii. If construction of the Project has resulted in damage to the Roads,
Developer shall obtain a visual recording, which documents the then current
physical conditions of the Roads following the completion of any repairs to
the Roads (hereafter the “Third Video Log”); and
iv. Submit true and correct copies saved to a digital video disc
(“DVD”) of the Second Video Log and Third Video Log, if any, to
Development Services Manager
c/o Will Kettler
County of Fresno
2220 Tulare Street, Sixth Floor
Fresno, California 93721
D. Developer shall advance the sum of Fifty Thousand Dollars and no
cents ($50,000.00) to County for the estimated cost of repairing any damage to the Roads
(hereafter, the “Road Repair Fund”), which the County may use to repair or replace the Roads
in the event that Developer fails to complete such repairs or replacements in accordance with
Section 1.(C)(ii). With respect to the amounts required to be advanced by Developer to County:
i. Such amounts are an estimate, and in any event not a limitation
on Developer’s obligation to fully fund the repairs to or
replacement of the Roads;
ii. Shall not obligate County to achieve a predetermined result,
including finding that the Owners have complied with the
Monitoring Plan, and
iii. Nothing in this Agreement alters the Owners’ respective
obligations under the Monitoring Plan.
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E. Additional Funding. For any invoice issued pursuant to Section 2.C,
Developer shall remit payment for the full amount reflected in the invoice within forty-five (45)
days of the date the invoice was issued by County.
SECTION 2. OBLIGATIONS OF THE COUNTY. County shall perform the
following obligations pursuant to this Agreement:
A. Create Account. Create an account into which the Road Repair Fund
will be deposited upon receipt from Developer;
B. Conduct Repairs. Conduct repairs to or replacement of the Roads
should Developer fail to repair or replace the Roads in accordance with Section 1.(C)(ii). County
shall be authorized to use all or a portion of the Road Repair Fund to conduct the repairs to or
replacement of the Roads.
C. Invoice for Additional Funds. Upon a determination by Director that the
funding remaining in the Road Repair Account is insufficient to complete repairs to or
replacement of the Roads, as required by this Agreement, Director may issue an invoice for the
amount of funding Director determines to be reasonably necessary to complete such repairs or
replacement of the Roads. Upon receipt of the funding from Developer, the County will deposit
the funding in the Road Repair Account.
D. Refund. Upon receipt of a written request from Developer to refund
any funds remaining in the Road Repair Account, the Director shall determine within 30 days
whether the funds in the Road Repair Account are necessary to ensure completion of any repairs
to or replacement of the Roads. If Director determines that funds remaining in the Road Repair
Account are necessary to ensure completion of any repairs to or replacement of the Roads,
Director shall issue written notification of such determination to Developer. If Director determines
that funds remaining in the Road Repair Account are not necessary to ensure completion of any
repairs to or replacement of the Roads, Director shall cause the funds remaining in the Road
Repair Account to be refunded to Developer within sixty (60) days from the date of such
determination. Upon refund of the funds remaining in the Road Repair Account to Developer, this
Agreement shall terminate, provided that Section 8 shall survive termination of this Agreement.
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SECTION 3. WAIVERS. Waiver of a breach or default under this Agreement
shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any
other provision of this Agreement.
SECTION 4. SEVERABILITY. If a court of competent jurisdiction finds that any
provision of this Agreement is invalid or unenforceable, such determination shall not affect the
validity and enforceability of any other provision of this Agreement.
SECTION 5. DEVELOPER'S LEGAL AUTHORITY. Each individual executing
or attesting this Agreement on behalf of Developer hereby covenants, warrants, and represents
that (1) he or she is duly authorized to execute or attest and deliver this Agreement on behalf of
Developer; (2) that this Agreement is binding upon Developer.
SECTION 6. MODIFICATION. Any matters of this Agreement may be modified
from time to time by the written consent of all the Parties without, in any way, affecting the
remainder.
SECTION 7. NON-ASSIGNMENT. Neither Party shall assign, transfer or
subcontract this Agreement nor their rights or duties under this Agreement without the prior
written consent of the other Party.
SECTION 8. HOLD HARMLESS. Developer agrees to indemnify, save, hold
harmless, and at County's request, defend the County, its officers, agents, and employees from
any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting
to County in connection with the performance, or failure to perform, by Developer, its officers,
agents, or employees under this Agreement, and from any and all costs and expenses,
damages, liabilities, claims, and losses occurring or resulting to any person, firm, or corporation
who may be injured or damaged by the performance, or failure to perform, of Developer, its
officers, agents, or employees under this Agreement.
SECTION 9. GOVERNING LAW AND VENUE. This Agreement shall be
deemed to have been entered into in Fresno County, and shall be interpreted under, and
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enforced by the laws of the State of California. The Agreement and obligations of the Parties
are subject to all laws, orders, rules, and regulations of the authorities having jurisdiction over
this Agreement (or the successors of those authorities). Any suits brought pursuant to this
Agreement shall be filed and heard in courts having jurisdiction and located in the Fresno
County, State of California.
SECTION 10. NOTICES. Except as otherwise specified herein, all notices,
demands, requests or approvals to be sent pursuant to this Agreement shall be made in writing,
and sent to the Parties at their respective addresses specified below or to such other address
as a Party may designate by written notice delivered to the other Parties in accordance with this
Section. All such notices shall be sent by: (a) personal delivery, in which case notice is effective
upon delivery; (b) certified or registered mail, return receipt requested, in which case notice shall
be deemed delivered upon receipt if delivery is confirmed by a return receipt; or (c) nationally
recognized overnight courier, with charges prepaid or charged to the sender’s account, in which
case notice is effective on delivery if delivery is confirmed by the delivery service.
County: County of Fresno
Director of Public Works and Planning
c/o Steven E. White
2220 Tulare Street, Sixth Floor
Fresno, California 93721
Copies of notices to County shall also be given to:
Office of the Fresno County Counsel
Attention: Arthur G. Wille, Senior Deputy County Counsel
2220 Tulare Street, Suite 500
Fresno, CA 93721
Developer: RE Tranquillity 8 LLC
300 California St, 7th Floor
San Francisco, CA 94104
SECTION 11. COUNTERPARTS. This Agreement may be signed in
counterparts, and shall be deemed effective when all Parties have signed the Agreement, or
any counterpart thereof.
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SECTION 12. HEADINGS; CONSTRUCTION; STATUTORY REFERENCES.
The headings of the sections and paragraphs of this Agreement are for convenience only and
shall not be used to interpret this Agreement. This Agreement is the product of negotiation
between the Parties. The language of this Agreement shall be construed as a whole according
to its fair meaning and not strictly for or against any Party. Any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not apply in interpreting this
Agreement. All references in this Agreement to particular statutes, regulations, ordinances or
resolutions of the United States, the State of California, or the County of Fresno shall be deemed
to include the same statute, regulation, ordinance or resolution as hereafter amended or
renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.
SECTION 13. ENTIRE AGREEMENT. This Agreement, including Exhibits A
and B, attached hereto and incorporated herein by this reference, represents the full and
complete understanding of the Parties with respect to the subject matter hereof, and all
preliminary negotiations and oral or written agreements with respect thereto are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof.
Any modification of this Agreement will be effective only by a written instrument signed by both
County and Developer. No waiver of any provision of this Agreement will be valid unless and
until it is in writing and signed by the Party making the waiver. Waiver by either Party at any
time of a breach or default of this Agreement shall not be deemed a waiver of or consent to a
breach or default of the same or any other provision of this Agreement. In the event of any
inconsistency in interpreting the documents which constitute this Agreement, the inconsistency
shall be resolved by giving precedence in the following order of priority: (1) the text of this
Agreement (excluding Exhibits "A", and "B"), (2) Exhibit "A", and (3) Exhibit "B".
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