HomeMy WebLinkAboutAgreement A-24-281 Indemnification and Defense Agreement.pdf Agreement No. 24-281
1 INDEMNIFICATION AND DEFENSE AGREEMENT
2 THIS INDEMNIFICATION AND DEFENSE AGREEMENT
3 ("Agreement") is entered into this June 4, 2024 ("Effective Date"), by and between the
4 COUNTY OF FRESNO, a political subdivision of the State of California("COUNTY"), and S.
5 Stamoules, Inc., a California Corporation registered to do business in the State of California ad
6 OPA Pistachios, LLC, a California limited liability company (collectively, "APPLICANT"),
7 whose principal address on file with the California Secretary of State is 904 S. Lyon Ave.,
8 Mendota, California 93640. COUNTY and APPLICANT are each a "Party" and together the
9 "Parties"to this Agreement.
10 RECITALS
1 I A. APPLICANT has applied to COUNTY for Unclassified Conditional Use Permit("CUP")
12 UCUP No. 3709 and Variance Application No. 4112 (for purposes of this Agreement,
13 together, certain "Land Use Approvals," as further defined below), allowing for the
14 construction of a pistachio processing facility comprised of a four-phase project
15 consisting of a 2 drive-over dumping pits, 2 pre-cleaning areas, 2 huller buildings, 40
16 dyers with a height of 29 feet, 48 silos with a height of 50 feet and a processing building
17 in the AE-20 Zone District and a Variance to allow the 48 silos to be 50-feet in height
18 and the two hullers to be 42.5 feet (maximum 35-foot allowed) in height in the AE-20
19 Zone District.
20 B. On June 8,2023, COUNTY's Planning Commission, in Resolution No. 13023,approved
21 UCUP No. 3709 and Variance Application No. 4112.
22 C. COUNTY's Planning Commission Resolution 13023 requires that APPLICANT, as a
23 condition of the approval of UCUP No. 3709 and Variance Application No. 4112, "shall
24 enter into an agreement indemnifying the County for all legal costs associated with its
25 approval of UCUP No. 3709 and Variance Application No. 4112 and provide security in
26 an amount determined by the County for any such legal costs incurred."
27 D. On March 5, 2024, COUNTY's Board of Supervisors considered an appeal of Planning
28 Commission Resolution 13023, brought by Advocates for the Environment, Inc. and
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I upheld the determination of the Planning Commission to conditionally approve UCUP
2 No.3709 and Variance Application No.4112.This Board approval was conditioned upon
3 the applicant entering into an agreement indemnifying the County for all legal costs
4 associated with its approval of UCUP No. 3709 and Variance Application No. 4112 and
5 provide security in an amount determined by the County for any such legal costs
6 incurred."
7 E. Litigation challenging the granting or issuance of land use approvals by governmental
8 bodies is proliferating, and such litigation exposes COUNTY to potential liability for
9 damages, costs, and attorneys' fees.
10 F. In such litigation, the person or entity receiving land use approvals is named as a real
11 party in interest and is the party that primarily and directly benefits from the granting or
12 issuance of the land use approvals.
13 G. COUNTY's Board of Supervisors is an objective decision-making body and, therefore,
14 has no special interest in the approval or denial of land use applications, or the outcome
15 of litigation arising from such grant or denial,except as to those which promote important
16 public policy.
17 H. COUNTY could incur great expense in the active defense of such litigation and, if
18 unsuccessful, may also be required to pay the attorneys' fees and costs of a challenger, if
19 the court determines that the challenger is the prevailing party.
20 I. Fairness and sound fiscal policy require that the person or entity receiving the benefits of
21 a land use approval should also bear the burden of the liability for potential injuries and
22 the expense of such litigation.
23 J. APPLICANT and COUNTY mutually desire to enter into this Agreement, by which
24 APPLICANT shall indemnify, defend at COUNTY's request, save, and hold harmless
25 the "Indemnified Parties" (as defined herein) as required herein, in order that the
26 Indemnified Parties shall bear no fiscal or financial burden whatsoever resulting from any
27 litigation challenging COUNTY's grant or issuance of any of the Land Use Approvals,
28 defined below,to APPLICANT.
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1
2 AGREEMENT
3 In consideration of COUNTY granting APPLICANT's application for UCUP No. 3709
4 and Variance Application No. 4112 and other consideration the receipt and sufficiency of which
5 is hereby acknowledged, COUNTY and APPLICANT agree as follows:
6 1. EFFECTIVE DATE; TERM
7 This Agreement shall become effective as of the Effective Date, and shall
8 continue in full force and effect until all obligations of APPLICANT hereunder are complete to
9 the satisfaction of COUNTY and the "litigation period has expired" as stated in COUNTY's
10 Planning Commission Resolution No. 13023.
11 2. INCORPORATION OF RECITALS
12 The Recitals set forth above are incorporated herein by this reference and are
13 made a part of this Agreement as if set forth in their entirety.
14 3. DEFINITIONS
15 a) "APPLICANT" means the person or entity to whom the Land Use
16 Approvals has been, or will be, granted or issued, and his,her, or its heirs, assigns or successors
17 in interest.
18 b) "Business Day" means the business day of the Party required to perform
19 an obligation herein,provided however, a business day of Party who is an individual shall mean
20 Monday through Friday, inclusive. Any reference in this Agreement to a major requirement of
21 the"Escrow Agent"(as defined herein)under the"Escrow Agreement" (as defined herein) shall
22 mean the business days of the Escrow Agent to perform a major requirement thereunder. If this
23 Agreement specifies a day or date by which a certain action is to be taken or notice to be given,
24 then the action to be taken or notice to be given must be completed by 5:00 p.m. (Pacific time)
25 on such date.
26 c) "Cash Security" means and includes the then-current amount of the cash,
27 which shall be irrevocably delivered by the APPLICANT to the Escrow Agent and held on
28 deposit by the Escrow Agent under the Escrow Agreement,or any portion thereof, including any
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I increases of the cash as a result of interest income earned on the cash, all as held on deposit by
2 the Escrow Agent for the sole benefit of COUNTY thereunder, less any COUNTY drawings of
3 the cash under the Escrow Agreement.
4 d) "COUNTY" means the County of Fresno, a political subdivision of the
5 State of California.
6 e) "COUNTY Business Day" means Monday through Friday, inclusive, but
7 excluding any day which is recognized as a legal holiday by COUNTY.
8 f) "Day" means a calendar day unless specified to the contrary in this
9 Agreement or the Escrow Agreement, as applicable.
10 g) "Director" means the Director of COUNTY's Department of Public
11 Works and Planning.
12 h) "Escrow Agent" means a financial institution, appointed jointly by
13 APPLICANT and COUNTY (or otherwise, if necessary, by a court of competent jurisdiction),
14 that receives the Cash Security from APPLICANT, and is authorized under the Escrow
15 Agreement to hold the Cash Security, and to disburse the Cash Security to COUNTY upon
16 COUNTY's drawing thereunder.
17 i) "Escrow Agreement" means an agreement by and among APPLICANT,
18 COUNTY, and the Escrow Agent, which is the arrangement by which APPLICANT shall
19 irrevocably deposit the Cash Security with the Escrow Agent, for the sole benefit of COUNTY,
20 to enable APPLICANT to secure its faithful performance of its obligations under this Agreement.
21 j) "Final Disposition"means a dismissal with prejudice of a Legal Action or
22 a final judgment in a Legal Action, including any available appeals and/or writs to a court(s) of
23 higher or supervisory jurisdiction.
24 k) "Land Use Approvals" shall include any benefit arising from any of the
25 following: the grant of an amendment to COUNTY's general plan or a rezoning; the issuance of
26 a variance, a conditional use permit, a review and approval permit issued by the Director (also
27 known as a"director's review and approval"),or other discretionary land use permit;the approval
28 of a parcel,tentative,or final subdivision map; and any other document prepared pursuant to the
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I Surface Mining and Reclamation Act("SMARA"), or the California Environmental Quality Act
2 ("CEQA"). "Land Use Approvals" do not include a ministerial permit or this Agreement.
3 1) "Legal Action" means a lawsuit, petition, claim, action, cause of action,
4 or other legal proceeding initiated in a court, including an appeal(s) and/or writ(s) to a court of
5 higher jurisdiction,which seeks to attack,set aside,void,remand to a lower jurisdiction,or annul
6 any of the Land Use Approvals for the Project.
7 m) "Project"means the use of the land authorized by the following Land Use
8 Approvals: UCUP No. 3709 and Variance Application No. 4112.
9 4. APPLICANT's INDEMNIFICATION, DEFENSE AND HOLD
10 HARMLESS OBLIGATIONS
11 a) APPLICANT hereby agrees to save, indemnify, hold harmless and, at
12 COUNTY's request, defend COUNTY, its officers, agents, employees, and attorneys, and
13 experts and consultants engaged by such attorneys,the Fresno County Board of Supervisors,each
14 member of the Fresno County Board of Supervisors, the Fresno County Planning Commission,
15 and each member of the Fresno County Planning Commission(each an"Indemnified Party,"and
16 collectively,the"Indemnified Parties"),from and against any and all demands,liabilities,causes
17 of action, claims, losses, expenses, costs(including but not limited to court costs, attorneys' fees
18 and costs,and fees and costs of any experts or consultants engaged by such attorney),or damages
19 of any nature or kind whatsoever asserted against, or occurring or resulting to, any of the
20 Indemnified Parties, including, but not limited to, attorneys' fees and costs of the persons,
21 organizations or entities bringing any Legal Action, or their respective officers, agents, and
22 employees, arising, from resulting from,or in connection with any COUNTY action in granting,
23 issuing, or approving any Land Use Approvals for the Project.
24 b) When defending any or all of the Indemnified Parties as required herein,
25 APPLICANT shall be solely responsible to engage the attorney(s), subject to approval by the
26 County Counsel, which approval shall not be unreasonably withheld, who will represent the
27 Indemnified Parties in their defense to the Legal Actions and shall be solely responsible to pay
28 all attorneys' fees and costs (including but not limited to court costs, and fees and costs of any
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I experts or consultants engaged by such attorney) related to the defense in any Legal Action
2 brought against any or all of the Indemnified Parties, except for any fees and costs directly
3 incurred by COUNTY in its own defense of the Legal Action, as provided in Section 9 of this
4 Agreement. Prior to entering into the fee agreement with the attorney(s) to be retained to
5 represent the Indemnified Parties in their defense to the Legal Actions,APPLICANT shall inform
6 such attorney(s) to be retained of APPLICANT's foregoing payment obligations under this
7 Section 4(b) as well as County Counsel's right to approve APPLICANT's engagement of the
8 attorney(s). Within five (5) COUNTY Business Days after the execution of this Agreement,
9 APPLICANT shall deliver to the COUNTY at the address set forth in Section 12 of this
10 Agreement a copy of the fee agreement (without any redaction of its provisions) between the
11 APPLICANT and the attorney(s)retained to represent the Indemnified Parties in their defense to
12 the Legal Actions. County Counsel's right to approve APPLICANT's engagement of such
13 attorney(s)under this Section 4(b) shall apply to any replacement attorneys whom APPLICANT
14 may engage after the initial engagement of any attorney(s), but in no event will the County
15 Counsel's approval be unreasonably withheld.
16 c) APPLICANT understands and acknowledges that there shall be no limit
17 whatsoever on the amount of attorneys' fees and costs (including but not limited to court costs,
18 and fees and costs of any experts or consultants engaged by such attorney) the APPLICANT is
19 required to pay to COUNTY or incur to satisfy its obligations under this Agreement.
20 d) APPLICANT's obligations under this Agreement shall apply whether or
21 not there is concurrent, active, or passive negligence, or other liability, on the part of the
22 Indemnified Parties, or any of them. APPLICANT's obligations under this Agreement shall be
23 fully effective regardless of whether any or all Land Use Approvals issued by COUNTY
24 regarding the Project remain valid or are invalidated, or are modified, in whole or in part by any
25 court.
26 5. CASH SECURITY
27 a) As security to COUNTY for APPLICANT'S faithful performance of all
28 of APPLICANT'S obligations to defend, indemnify, and hold harmless the Indemnified Parties
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I as required herein, APPLICANT shall, and shall cause an Escrow Agent, not later than fifteen
2 (15) business days subsequent to the execution of this Agreement by the Parties, enter into an
3 Escrow Agreement among APPLICANT, COUNTY, and the Escrow Agent. The Cash Security
4 for the Escrow Agreement shall be in the minimum amount of Fifty Thousand Dollars
5 ($50,000.00)in immediately available United States currency. The amount of the Cash Security
6 is not a limitation on APPLICANT's obligations to defend, indemnify, and hold harmless the
7 Indemnified Parties as required herein.
8 b) The Escrow Agreement shall be in a form and substance acceptable to
9 COUNTY in its sole discretion. The Escrow Agent shall be acceptable to COUNTY in its sole
10 discretion,provided however,COUNTY shall not have any liability,either directly or indirectly,
11 in respect of such decision or the performance or failure to perform of the Escrow Agent in
12 relation to the Escrow Agreement or the Cash Security. Without limiting the generality of the
13 foregoing requirements of the Escrow Agreement and Escrow Agent, APPLICANT shall, and
14 shall cause the Escrow Agent, to enter into an Escrow Agreement among APPLICANT,
15 COUNTY and the Escrow Agent in compliance with the following major requirements of the
16 Escrow Agreement, which major requirements are not an exhaustive list of requirements for the
17 Escrow Agreement:
18 i) Upon APPLICANT's, COUNTY's, and the Escrow Agent's execution of
19 the Escrow Agreement, APPLICANT shall irrevocably deliver to the Escrow Agent the
20 amount of Fifty Thousand Dollars ($50,000.00) in immediately available United States
21 currency,as the Cash Security for the exclusive purposes of the Escrow Agreement. The
22 Escrow Agent shall receive, and upon receipt immediately deposit, and hold the Cash
23 Security only in a savings deposit account of the Escrow Agent for the exclusive purposes
24 of the Escrow Agreement. A"savings deposit account"does not include a money market
25 account, certificate of deposit, or any account which is not immediately liquid. The
26 Escrow Agent shall cause the Cash Security, while on deposit with the Escrow Agent
27 under the Escrow Agreement,to be interest-bearing,at a rate available to members of the
28 public, and fully insured by the Federal Deposit Insurance Corporation(FDIC)up to the
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I lesser of(i) the amount of the Cash Security while on deposit with the Escrow Agent
2 under the Escrow Agreement;or(ii)the then-current maximum FDIC insurance coverage
3 available for an FDIC-insured deposit account. The Cash Security shall be maintained by
4 the Escrow Agent as a separate deposit account with its own ownership classification as
5 being for the sole benefit of COUNTY, which deposit account shall be distinct from any
6 and all other accounts or funds of the APPLICANT that might be maintained or held by
7 the Escrow Agent or its parent or affiliates, to ensure that the FDIC insurance coverage
8 available for an FDIC-insured deposit account shall apply completely to the Cash
9 Security. COUNTY shall not have any liability, either directly or indirectly, in respect of
10 any loss of any principal of, or any earnings on,the Cash Security.
11 ii) Upon demand by COUNTY, APPLICANT shall, within ten (10) days of
12 such demand irrevocably deliver to the Escrow Agent an additional sum of One Hundred
13 Thousand Dollars ($100,000.00) in immediately available United States currency, as
14 additional Cash Security for the exclusive purposes of the Escrow Agreement. COUNTY
15 may make a demand pursuant to this section if the following conditions occur:
16 a) any litigation challenging COUNTY's grant or issuance of any of
17 the Land Use Approvals is set for trial and has not reached a
18 negotiated resolution or dismissal with prejudice of the COUNTY
19 thirty (30)days before trial;
20 b) Bankruptcy, liquidation, arrangement, insolvency, receivership or
21 conservatorship proceedings, or other proceedings for relief under
22 any bankruptcy or similar law or laws for the relief of debtors, are
23 instituted by or against APPLICANT (S. Stamoules Inc. and/or
24 OPA Pistachios, LLC),or there is an assignment by APPLICANT
25 for the benefit of creditors,or any similar action taken by or against
26 APPLICANT, or APPLICANT is insolvent.
27
28
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I c) APPLICANT (S. Stamoules Inc. and/or OPA Pistachios, LLC)
2 ceases to do business, is bought, sold, merged, or otherwise
3 substantially alters their principal business activities such that
4 COUNTY, in its sole judgment, believes additional security is
5 necessary to fulfill the purposes of this Agreement.
6
iii) APPLICANT shall promise, covenant, and warrant to COUNTY and the
7
Escrow Agent that the Cash Security is not and shall not at any time be subject to any
8
attachments, seizures, garnishments, pledges, liens, encumbrances, levies, security
9
interests, claims of any creditors, or writs, or court orders,judgments or decrees, all of
10
which shall be of every nature whatsoever; and if any such conditions occur,
11
APPLICANT shall immediate remove, cure, or satisfy such conditions with funds or
12
resources other than the Cash Security and promptly give COUNTY and the Escrow
13
Agent notice thereof.
14
iv) Upon COUNTY's presentation of its instructions for drawing upon the Cash
15
Security to the Escrow Agent, under the Escrow Agreement, the Escrow Agent shall,
16
solely by examining the face of COUNTY's drawing instructions for compliance with
17
the requirements in the Escrow Agreement for making drawings, pay COUNTY
18
according to the terms of such COUNTY drawing in immediately available United States
19
currency up to the then-current amount of the Cash Security within three (3) business
20
days of such presentation to the Escrow Agent. COUNTY's place of presentation of its
21
written instructions for drawing upon the Cash Security to the Escrow Agent shall be at
22
a location or locations reasonably accessible to COUNTY, one of which locations shall
23
be within the City of Fresno. Partial and multiple drawings, or a single drawing, by
24
COUNTY upon the Cash Security, up to the then-current amount of the Cash Security,
25
shall be permitted under the Escrow Agreement. Within one(1) COUNTY business day
26
after COUNTY's receipt of any drawing, COUNTY shall give written notice thereof to
27
APPLICANT.
28
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1 i) APPLICANT shall promise, covenant, and warrant to COUNTY and the
2 Escrow Agent that if COUNTY attempts to draw upon,or draws upon,the Cash Security,
3 APPLICANT (including APPLICANT's successors or assigns, or anyone claiming
4 through APPLICANT, or any other persons, firms, or entities acting at the direction, or
5 under the authority, of APPLICANT) shall not in any way whatsoever, either directly or
6 indirectly, defeat, interfere with, obstruct, or cause delay to said right of COUNTY to do
7 so, including, but not limited to, demanding the Escrow Agent not to honor or pay
8 COUNTY on any draw upon the Cash Security, or taking any legal action against
9 COUNTY, Indemnified Parties, and/or the Escrow Agent, including the Cash Security,
10 to stay,enjoin,or prevent COUNTY from drawing upon the Cash Security,or taking any
11 legal action against COUNTY, Indemnified Parties, and/or the Escrow Agent, including
12 the Cash Security, to seek to suspend, invalidate, make unenforceable, or terminate the
13 Escrow Agreement, provided however, nothing in this section 5(b)(iv) precludes
14 APPLICANT from any subsequent legal action against COUNTY, after COUNTY has
15 made a drawing upon the Cash Security, on the ground that such drawing violated this
16 Agreement, provided further however, COUNTY shall not be precluded from bringing
17 any cross-action against APPLICANT relating to same.
18 ii) The Escrow Agreement shall have requirements regarding APPLICANT's
19 obligations for indemnifying and defending COUNTY and the Escrow Agent,the Escrow
20 Agent's compensation which shall be payable solely by APPLICANT (and in any event
21 shall not be payable from the Cash Security or by the COUNTY), and COUNTY's right
22 to receive and have access to reports of all account activities,including without limitation
23 interest income on, and disbursements of, the Cash Security, all of which requirements
24 shall be acceptable to COUNTY.
25 iii) COUNTY shall have the right, based upon its determination, in its sole
26 discretion, to give the Escrow Agent and APPLICANT notice that (i) all of the Cash
27 Security has, according to the terms and conditions of the Escrow Agreement, been paid
28 to COUNTY,or(ii)the Cash Security no longer is needed by COUNTY,and in the event
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I that there is, to COUNTY's knowledge, any remaining Cash Security at the time of such
2 notice,COUNTY's notice shall state that COUNTY releases its interest under the Escrow
3 Agreement in such remaining Cash Security.
4 iv) APPLICANT shall be solely responsible for all federal income tax
5 compliance and reporting, and payment of all income taxes(including, but not limited to,
6 late payments, interest, penalty or other cost or expense) with respect to the earnings of
7 the Cash Security, as well as all representations to Escrow Agent or the Federal
8 Government with regard to such federal income tax compliance and reporting and
9 payment of income taxes,except that COUNTY will have the sole obligation of providing
10 its tax identification number by furnishing an appropriate form W-9 to the Escrow Agent
11 as requested by the Escrow Agent.
12 v) To the extent that the Escrow Agent and/or COUNTY becomes liable for
13 the payment of any taxes in respect of income derived from the Cash Security,
14 APPLICANT shall indemnify, defend and hold the Escrow Agent and COUNTY
15 harmless,including their respective officers,agents,and employees,from and against any
16 and all taxes, late payments, interest, penalty or other cost or expense (including
17 attorneys' fees and expenses) that may be assessed against the Escrow Agent and/or
18 COUNTY, on or with respect to the Cash Security and the interest thereon unless such
19 taxes, late payments, interest, penalty or other expense was directly caused by the gross
20 negligence or willful misconduct of the Escrow Agent and/or COUNTY, as applicable.
21 d) If APPLICANT has not completed the performance of all of its obligations
22 under this Agreement, as determined by COUNTY, the termination of an Escrow Agreement,
23 shall not, by itself, be a limitation on APPLICANT's obligations to maintain the Cash Security
24 under an Escrow Agreement, as required herein. APPLICANT shall cause the Cash Security to
25 be maintained by the Escrow Agent under an Escrow Agreement, as provided herein, or
26 immediately under any replacement Escrow Agreement to be maintained by any new Escrow
27 Agent,as provided herein,without interruption in coverage, so that APPLICANT's performance
28 of its obligations under this Agreement to defend, indemnify,and hold harmless the Indemnified
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I Parties as required herein is continuously secured by a Cash Security either by an Escrow
2 Agreement or a replacement Escrow Agreement during the term of this Agreement. The
3 requirements, above, for an Escrow Agreement shall apply to any replacement Escrow
4 Agreement, and the requirements, above, for the Escrow Agent shall apply to any new Escrow
5 Agent. In the event that there should be a need for a replacement Escrow Agreement, the
6 determination whether a proposed replacement Escrow Agreement is acceptable to COUNTY,
7 COUNTY may consider whether the proposed replacement Escrow Agreement complies
8 substantially with the form and substance of the then-current Escrow Agreement.
9 6. DEFAULT
10 For purposes of this Agreement, the occurrence of any one or more of the
11 following events shall constitute an"Event of Default" by APPLICANT under this Agreement:
12 a) If a court makes one or more orders that COUNTY shall pay any
13 attorneys' fees and costs (including but not limited to any court costs, and/or fees and/or costs of
14 any experts or consultants engaged by such attorney) of any parties challenging the Project,
15 and/or any other amounts to such parties, and APPLICANT fails to reimburse COUNTY within
16 ten (10) Business Days for such attorney's fees and/or costs, and/or amounts upon COUNTY's
17 written request for payment thereof;
18 b) APPLICANT fails to promptly defend, indemnify, and hold harmless the
19 Indemnified Parties, as required under this Agreement;
20 c) APPLICANT fails to timely pay any amount due or owed by
21 APPLICANT to COUNTY under this Agreement (including, but not limited to, APPLICANT
22 fails to promptly pay COUNTY for the amount of attorneys' fees and costs (including but not
23 limited to court costs,and fees and costs of any experts or consultants engaged by such attorney)
24 in excess of the Cash Security),or any amount due or owed by APPLICANT to the Escrow Agent
25 under an Escrow Agreement;
26 d) APPLICANT fails to,and fails to cause the Escrow Agent to,timely enter
27 into the Escrow Agreement and irrevocably deposit the Cash Security with the Escrow Agent for
28 the exclusive purposes of the Escrow Agreement, or fails to, or fails to cause a new Escrow
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I Agent, to timely enter into a replacement Escrow Agreement and irrevocably deposit the Cash
2 Security with the replacement Escrow Agent for the exclusive purposes of the replacement
3 Escrow Agreement, as required by Section 5 of this Agreement;
4 e) APPLICANT's breach or default under the Escrow Agreement or
5 replacement Escrow Agreement;
6 f) The breach or default in the performance of any other obligations in this
7 Agreement, or falsity of any representations or warranties, of APPLICANT in this Agreement
8 for a period of thirty (30) days after COUNTY provides written notice to APPLICANT, stating
9 the obligation APPLICANT has failed to perform, or the apparently false representation or
10 warranty of APPLICANT, provided however, if the nature of the breach or default or false
11 representation or warranty is such that APPLICANT cannot reasonably cure the breach or
12 default, or correct the false representation or warranty within thirty (30) calendar days,
13 APPLICANT shall have an additional reasonable time to cure or correct, as applicable, subject
14 to APPLICANT commencing to cure or correct, as applicable, within the thirty (30) day period
15 and diligently pursuing the cure or correction, as applicable, to completion and completing the
16 cure or correction, as applicable, not later sixty (60) days from the date of COUNTY's notice of
17 such failure to perform or apparently false representation or warranty. Notwithstanding anything
18 to the contrary in this Agreement, this subsection 6(f) shall not apply to any of APPLICANT's
19 obligations under Sections 4 and/or 5 of this Agreement; or
20 g) Bankruptcy, liquidation, arrangement, insolvency, receivership or
21 conservatorship proceedings,or other proceedings for relief under any bankruptcy or similar law
22 or laws for the relief of debtors, are instituted by or against APPLICANT,and are not dismissed
23 within ninety (90) days of institution, or there is an assignment by APPLICANT for the benefit
24 of creditors,or any similar action taken by or against APPLICANT,or APPLICANT is insolvent;
25 h) APPLICANT, if it is an entity, ceases to be an entity lawfully doing
26 business in the United States, or if it is an individual, ceases to be permanently and lawfully
27 residing in the United States or dies, or in either such case, if not subject to service of process in
28 California, ceases having an agent for service of process in California.
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I Upon occurrence of an Event of Default,COUNTY shall have the right to declare
2 that APPLICANT is in material breach of this Agreement, and (unless COUNTY is otherwise
3 relieved herein of the necessity of providing such notice to APPLICANT, in which case
4 COUNTY shall be entitled to immediately proceed in enforcing its remedies herein) deliver
5 written notice thereof to APPLICANT. In such event, if the Event of Default is not cured by
6 APPLICANT within fifteen(15)COUNTY Business Days of the delivery of COUNTY's written
7 notice, COUNTY thereupon shall be entitled under the Escrow Agreement to immediately draw
8 upon the Cash Security, or from time to time immediately make partial draws upon the Cash
9 Security, which partial draws shall permanently reduce the total amount of the Cash Security
10 pursuant to Section 5 of this Agreement. Notwithstanding anything to the contrary herein, in the
11 event that there is an Event of Default under subsection 6(a), subsection 6(c), and/or subsection
12 6(g) of this Agreement, or there are, in COUNTY's determination, any circumstances beyond
13 COUNTY's control that would frustrate COUNTY's ability to provide any notice to
14 APPLICANT that is necessary for an Event of Default and/or any notice to APPLICANT that
15 APPLICANT is in material breach of this Agreement,then(i)such notice(s)shall not be required
16 to be provided by COUNTY to APPLICANT, (ii) COUNTY shall have the right to immediately
17 declare that an Event of Default has occurred,and COUNTY shall memorialize such declaration,
18 and (iii), COUNTY thereupon shall be entitled to immediately draw upon the Cash Security, or
19 from time to time immediately make partial draws upon the Cash Security, which partial draws
20 shall permanently reduce the total amount of the Cash Security pursuant to Section 5 of this
21 Agreement.
22 The occurrence of an Event of Default shall entitle COUNTY to all any and all
23 remedies available under this Agreement and under the law,including but not limited to,specific
24 performance and damages. Moreover, and without limiting COUNTY's remedies hereinabove,
25 the occurrence of an Event of Default under subsection 6(a), 6(b), 6(c), 6(d), 6(e), and/or 6(f) of
26 this Agreement shall constitute grounds upon which the COUNTY decision-making body may
27 rescind the issuance of any of the Land Use Approvals associated with the Project in accordance
28 with COUNTY's adopted ordinances and procedures..
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1 7. TERMINATION OF ESCROW AGREEMENT
2 If one or more Legal Action is initiated which challenges COUNTY's issuance of
3 any of the Land Use Approvals for the Project,then following the Final Disposition of all Legal
4 Actions, on or after the earlier of thirty (30) days past the expiration of the applicable appeal
5 period or passage of two hundred (200) days from the Final Disposition of the last Legal Action
6 to reach Final Disposition, APPLICANT may submit a written request to the Director to
7 terminate the Escrow Agreement,provided that there is not any occurrence of an Event of Default
8 by APPLICANT, and if the Director determines that APPLICANT has satisfied APPLICANT'S
9 obligations under this Agreement to defend, indemnify, and hold harmless the Indemnified
10 Parties as required herein, the Director, within thirty (30) COUNTY Business Days after
11 receiving such a written request, shall give written notice of COUNTY's determination as to the
12 Cash Security to APPLICANT and the Escrow Agent pursuant to Subsection 5.b.vi, above.
13 8. NOTIFICATIONS AND COOPERATION BY COUNTY
14 COUNTY shall notify APPLICANT in writing within ten (10) COUNTY
15 Business Days of its receipt of any demand, claim, action,proceeding, or litigation in which any
16 of the Indemnified Parties is to be indemnified, defended, and held harmless by APPLICANT as
17 required herein. If COUNTY requests that APPLICANT defend any of the Indemnified Parties,
18 it shall notify APPLICANT in writing within ten(10) COUNTY Business Days of its receipt of
19 any such demand, claim, action, proceeding, or litigation. In the event COUNTY provides such
20 notice later than such ten (10) COUNTY Business Days, COUNTY's rights under this
21 Agreement shall not be defeated, but, shall be preserved as of such date. COUNTY shall
22 cooperate fully in such defense.
23 9. COUNTY PARTICIPATION IN DEFENSE
24 Nothing contained herein shall prohibit COUNTY, in its sole discretion, from
25 participating in the defense of any Legal Action. If COUNTY elects to also so defend, it shall
26 do so in good faith and COUNTY shall bear its attorneys' fees and costs. In no event shall
27 COUNTY's participation in the defense of any Legal Action affect the obligations imposed upon
28 APPLICANT in Section 4 of this Agreement.
Page 15 of 20
1 10. REIMBURSEMENT OF COST OF ADMINISTRATIVE RECORD
2 COUNTY acknowledges that it will make reasonable efforts to look to any party
3 which has initiated a Legal Action challenging the Project for payment of costs associated with
4 preparation of administrative record as provided by law. However, if a party which has initiated
5 a Legal Action challenging the Project refuses to pay on or before the date judgment is entered
6 by the superior court, APPLICANT agrees to reimburse COUNTY for its actual cost incurred,
7 including, but not limited to, COUNTY staff and attorney time expended, for certifying and/or
8 preparing the administrative record in connection with any litigation/proceedings related to the
9 subject matter of this Agreement.
10 11. SEVERABILITY
11 If any provision of this Agreement is determined to be invalid in a final judgment
12 by a court of competent jurisdiction, each and every other provision hereof shall remain in full
13 force and effect.
14 12. NOTICES
15 All notices, consents, approvals, requests, correspondence, documents, reports,
16 demands and other communications (collectively, "Notice") which the Parties are required or
17 desire to serve upon or deliver to one another shall be in writing and shall be sent by any of the
18 following methods: (a) personal delivery, in which case notice is effective upon delivery; (b)
19 certified or registered United States mail, return receipt requested, in which case notice shall be
20 deemed delivered upon receipt if delivery is confirmed by a return receipt; or (c) nationally
21 recognized overnight courier, with charges prepaid or charged to the sender's account, in which
22 case notice is effective on delivery if delivery is confirmed by the delivery service addressed in
23 the appropriate manner for the method of service, as set forth below:
24 COUNTY:
25 County of Fresno
ATTENTION: Director of Public Works and Planning
26 2220 Tulare Street, Sixth Floor
Fresno, CA 93721
27
Copies of notices to COUNTY shall also be given to:
28
Page 16 of 20
Office of the Fresno County Counsel
1 ATTENTION: Deputy County Counsel Assigned to Land Use Matters
2220 Tulare Street, Suite 500
2 Fresno, California 93721
3
APPLICANT:
4
S.Stamoules,Inc. OPA Pistachios,LLC
5 904 South Lyon Avenue 904 South Lyon Avenue
6 Mendota, CA 93640 Mendota,CA 93640
7 Copies of notices to APPLICANT shall also be given to:
8 Marshall Whitney, Esq.
970 W. Alluvial Avenue
9 Fresno, CA 93711
10 For all claims arising out of or related to this Agreement, nothing in this Section
11 12 establishes,waives, or modifies any claims presentation requirements or procedures provided
12 by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the
13 Government Code, beginning with section 810).
14 13. APPLICANT's AGENT FOR SERVICE OF PROCESS
15 APPLICANT represents to COUNTY that APPLICANT's agent for service of process in
16 California, and that such agent's address for receiving such service of process in California,
17 which information APPLICANT shall maintain with the office of the California Secretary of
18 State, is as follows:
19 S. Stamoules, Inc.:
20 Robert Jones
6770 N. West Ave, Ste 105
21 Fresno, Ca 93711
22 OPA Pistachios, LLC:
Elena Stefanopoulos
23 904 S. Lyon Ave.
Mendota, Ca 93640
24
25
APPLICANT further represents to COUNTY that if APPLICANT changes its
26
agent for service of process in California, or APPLICANT's agent for service of process in
27
California changes its address for receiving such service of process in California, which changed
28
Page 17 of 20
I information APPLICANT shall maintain with the office of the California Secretary of State,
2 APPLICANT shall give COUNTY written notice thereof within five (5) calendar days thereof
3 pursuant to Section 5 of this Agreement.
4 14. MODIFICATION
5 This Agreement may not be altered, amended, or modified in any respect, except
6 by a writing duly executed by the Parties.
7 15. NON-ASSIGNMENT
8 Neither party shall assign,transfer or sub-contract this Agreement nor their rights
9 or obligations under this Agreement without the prior written consent of the other party.
10 16. AUTHORIZATION TO EXECUTE
11 Each Party represents, covenants, and warrants to the other Party that such Party
12 is duly authorized and empowered to execute, enter into, and perform its obligations set forth in
13 this Agreement, and that the individual signing this Agreement on behalf of such Party has been
14 duly authorized to execute this Agreement on behalf of such Party, and will, by signing this
15 Agreement on such Party's behalf, legally bind such Party to the terms and conditions of this
16 Agreement.Each Party further represents,covenants,and warrants to the other Party that no other
17 person or entity is required to give its approval or consent to this Agreement in order for such
18 Party to authorize, enter into, and perform its obligations under this Agreement, or that if such
19 approval or consent to this Agreement is required, that such approval or consent has been
20 obtained.
21 17. AUTHORITY OF DIRECTOR
22 The Director is hereby authorized by COUNTY to give any Notices on behalf of
23 COUNTY,make any determinations or declarations on behalf of COUNTY including with
24 respect to any Event of Default or material breach of this Agreement, or to take any action, or
25 enforce any right,on behalf of COUNTY under this Agreement, including any action relating
26 to the Cash Security and/or the Escrow Agreement(including any replacement Escrow
27 Agreement and/or new Escrow Agent), and any other actions necessary or appropriate in the
28
Page 18 of 20
I administration or enforcement of this Agreement, and/or the Escrow Agreement, on behalf of
2 COUNTY.
3 18. HEADINGS; CONSTRUCTION; STATUTORY REFERENCES;
4 TIME IS OF ESSENCE
5 The headings of the sections and paragraphs of this Agreement are for
6 convenience only and shall not be used to interpret this Agreement.
7 This Agreement is the product of negotiation between the Parties, as assisted by
8 their respective attorneys. The language of this Agreement shall be construed as a whole
9 according to its fair meaning and not strictly for or against any Party. Any rule of construction to
10 the effect that ambiguities are to be resolved against the drafting party shall not apply in
11 interpreting this Agreement. All references in this Agreement to particular statutes, regulations,
12 ordinances or resolutions of the United States, the State of California, or County of Fresno shall
13 be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended
14 or renumbered,or if repealed,to such other provisions as may thereafter govern the same subject.
15 It is understood that time is of the essence in APPLICANT's performance of all
16 of his obligations under this Agreement.
17 19. GOVERNING LAW AND VENUE
18 This Agreement shall be deemed to have been entered into in Fresno County, and
19 shall be interpreted under, and enforced by the laws of the State of California. The Agreement
20 and obligations of the parties are subject to all laws, orders, rules, and regulations of the
21 authorities having jurisdiction over this Agreement (or the successors of those authorities). Any
22 suits brought pursuant to this Agreement shall be filed and heard in courts having jurisdiction
23 and located in the Fresno County, State of California.
24 20. NO THIRD PARTY BENEFICIARIES
25 Notwithstanding anything else to the contrary herein,the Parties acknowledge and
26 agree that no other person, firm, corporation, or entity shall be deemed an intended third-party
27 beneficiary of this Agreement.
28 21. JOINT AND SEVERAL LIABILITY
Page 19 of 20
I S. Stamoules, Inc., a California Corporation registered to do business in the State of
2 California and OPA Pistachios, LLC, a California limited liability company, shall be jointly and
3 severally liable for the obligations of APPLICANT under this Agreement.
4 22. COUNTERPARTS
5 This Agreement may be executed in two or more counterparts,each of which shall
6 be deemed to be an original, and all of which taken together shall constitute one and the same
7 instrument.
8 23. INTEGRATED AGREEMENT
9 This Agreement contains the sole, complete, and entire agreement and
10 understanding of the Parties concerning the matters contained herein and may not be altered,
11 modified,or changed in any manner except by a writing duly executed by the Parties, stating that
12 such writing is by its express terms an amendment to this Agreement. Except as stated herein,
13 none of the Parties are relying on any representations by any other Party in executing this
14 Agreement.
15 (Signature page follows.)
16
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Page 20 of 20
I APPLICANT and COUNTY hereby execute this Agreement as of the Effective Date.
2
APPLICANT: COUNTY OF FRESNO, a political
3 subdivision of the State of California
S. Stam nc.
4 _
5 By �S
By
6 Name: Nathan Magsig, Chairman of the Board
of Supervisors of the County of Fresno
7 Title-CL_
BERNICE E. SEIDEL,
8 Clerk to the Board of Supervisors
OPA Pistachio LLC County of Fresno, State of California
9
10 By
Names-q� S' g'C—t--�Ig-lb V,7W By
Deputy
1 Title:
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16
17
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19
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