HomeMy WebLinkAboutAgreement A-25-111 Release for Indemnification Agreement.pdf 25-0204
Agreement No. 25-111
1 Release of Indemnification Agreement
2 This Release of Indemnification Agreement (Release) is dated March 25, 2025 and is
3 executed by the County of Fresno (County), a political subdivision of the State of California, and
4 is acknowledged by Friant Ranch, a Limited Partnership (Applicant), a California limited
5 partnership.
6 Recitals
7 A. On March 8, 2011, the County and the Applicant entered into that certain Indemnification
8 Agreement (County Agreement#11-071), as a condition of the County granting that
9 certain "Land Use Approval" (as defined in Section 1(b) thereof) (collectively, the "2011
10 Land Use Approval") for that certain "Project" (as defined in Section 1(d) thereof).
11 B. Prior to granting the 2011 Land Use Approval to the Applicant, the County, as stated in
12 the Agreement, undertook related California Environmental Quality Act findings, imposed
13 mitigation measures and required a mitigation monitoring program, and the County
14 Board of Supervisors (County Board) adopted a statement of overriding considerations
15 and certified the Final Environmental Impact Report (State Clearinghouse No.
16 2007101016) related to all of the foregoing County actions (collectivity, the EIR).
17 C. Litigation stemming from the Project resulted in a court order, issued on March 19, 2019,
18 that directed the County to set aside the 2011 Land Use Approval, and ordered the
19 County to vacate or set aside its approval of the Project and not approve the Project
20 before preparing a revised EIR that provides an adequate discussion of health and
21 safety problems that will be caused by the rise in various pollutants resulting from the
22 Project's development.
23 D. On April 13, 2021, the County Board set aside the 2011 Land Use Approval by adopting
24 Ordinance No. 21-005, Resolution No. 21-109, and Resolution No. 21-110.
25 E. The County Board has not taken any action with respect to the Project since April 13,
26 2021, as stated in Recital D hereof.
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1 F. The Applicant has pending before the County a current application to request the
2 County's recertification of a revised EIR and re-approval of land use approvals
3 associated with the Project and the revised EIR.
4 G. The Applicant has delivered to the County Board a written opinion of the Applicant's
5 legal counsel, which necessary under subsection 7(b) of the Agreement for the County's
6 termination of the Agreement stating, without qualification, the representations and
7 opinions required thereunder (collectively, the Opinion of Applicant's Counsel); such
8 Opinion of Applicant's Counsel includes the Applicant's petition to the County Board,
9 under subsection 7(a)(ii) of the Agreement for the County's termination of the
10 Agreement.
11 H. In light of the Opinion of Applicant's Counsel, which includes the Applicant's petition to
12 the County Board, delivered to the County Board, the County Board, in reliance upon
13 the Opinion of Applicant's Counsel, hereby determines that the County no longer has
14 any need for the Indemnification Agreement, including the current financial security of
15 $150,000 for the Agreement, which is that certain Irrevocable Letter of Credit, dated
16 March 19, 2019 (No. 200519), issued by Premier Valley Bank to the County as
17 beneficiary thereunder (the Financial Security).
18 I. Accordingly, the County provides this Release of Indemnification Agreement (Release)
19 to the Applicant.
20 Article 1
21 Term of Release
22 1.1 Term. This Release is effective on the date that the County executes this Release,
23 and the Applicant acknowledges this Release (Effective Date), and upon the Effective Date, this
24 Release shall remain in effect indefinitely, provided however, if Applicant does not deliver its
25 acknowledgement of this Release to the Department of Public Works and Planning at its
26 address set forth in Section 3.1 hereof within thirty (30) days of the date that the County delivers
27 this executed Release to the Applicant, this Release shall expire and have no force or effect.
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1 Article 2
2 Opinion of Applicant's Counsel
3 2.1 Opinion of Applicant's Counsel. A copy of the Opinion of Applicant's Counsel is
4 attached to this Release, as Exhibit A, and satisfies all the conditions of subsection 7(b) of the
5 Indemnification Agreement necessary for the County's termination of the Agreement.
6 Article 3
7 Release
8 3.1 Release. In consideration of receiving the Opinion of Applicant's Counsel, the
9 County hereby releases the Applicant from any and all of the Applicant's obligations under the
10 Agreement, including the Applicant's obligation to maintain the Financial Security for the
11 Agreement. Once the Applicant timely delivers its acknowledgement of this Release to the
12 Department of Public Works and Planning at "County of Fresno, In Care of: Department of
13 Public Works and Planning, 2220 Tulare Street, Suite 800, Fresno, CA 93721," the Director of
14 the Department of Public Works and Planning, or his designee, shall then, within fifteen (15)
15 days thereafter, return the Financial Security directly to Premier Valley Bank. The provisions of
16 this Section 3.1 are subject to the provisions of Section 1.1 hereof.
17 3.2 Termination of the Agreement. Based on the Opinion of Applicant's Counsel
18 delivered to the County Board, the County's execution and delivery of this Release to the
19 Applicant, and the Applicant's timely delivery of its executed acknowledgement of this Release
20 to the Department as provided by subsection 3.1 hereof, the County is deemed to have
21 terminated the Agreement. The provisions of this Section 3.2 are subject to the provisions of
22 Section 1.1 hereof.
23 3.3 No effect on any future consideration of the Project or any partially
24 recirculated EIR. This Release relates only to the 2011 Land Use Approval associated with the
25 Project. This Release is made without prejudice to the Applicant's current application to request
26 the County's recertification of a revised EIR and re-approval of land use approvals associated
27 with the Project and the revised EIR. Nothing in this Release, express or implied, (i) affects any
28 possible future County consideration of or action with respect to the Project or any partially
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1 recirculated EIR associated with the Project or any portion of it, or any land use approvals
2 associated with the Project or any portion of it, (ii) prohibits the County in any way from
3 conditioning any possible future County consideration or approval of the Project, or any portion
4 of it, or of the partially recirculated EIR associated with the Project or any portion of it, or of any
5 land use approvals associated with the Project or any portion of it, (iii) may operate or be
6 interpreted as any pre-approval or pre-commitment by the County for any possible future
7 County consideration or approval of the Project, or any portion of it, or of any partially
8 recirculated EIR associated with the Project or any portion of it, or of any land use approvals
9 associated with the Project or any portion of it.
10 Article 4
11 Independent Relationship
12 4.1 Status. The parties with respect to this Release are in an independent capacity with
13 each other, and not as an officer, agent, servant, employee, joint venturer, partner, or associate
14 of the other.
15 Article 5
16 Public Record
17 5.1 Public Record. This Release is subject to public disclosure under the Ralph M.
18 Brown Act (California Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with
19 section 54950). This Release is subject to public disclosure as a non-exempt public record
20 under the California Public Records Act (California Government Code, Title 1, Division 10,
21 beginning with section 7920.000) and under California Constitution, Article 1, section 3,
22 subdivision (b).
23 Article 6
24 General Terms
25 6.1 Governing Law. The laws of the State of California govern all matters arising from
26 or related to this Release.
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1 6.2 Jurisdiction and Venue. This Release is signed and performed in Fresno County,
2 California. Applicant consents to California jurisdiction for actions arising from or related to this
3 Release, and, subject to the Government Claims Act, all such actions must be brought and
4 maintained in Fresno County.
5 6.3 Construction. The final form of this Release is the result of the parties' combined
6 efforts. If anything in this Release is found by a court of competent jurisdiction to be ambiguous,
7 that ambiguity shall not be resolved by construing the terms and conditions of this Release
8 against either party.
9 6.4 Days. Unless otherwise specified, "days" means calendar days.
10 6.5 Headings. The headings and section titles in this Release are for convenience only
11 and are not part of this Release.
12 6.6 Entire Release. This Release is the entire released by the County with respect to
13 the subject matter of this Release, and it supersedes all previous negotiations, proposals,
14 commitments, writings, advertisements, publications, and understandings of any nature unless
15 those things are expressly included in this Release.
16 6.7 No Third-Party Beneficiaries. This Release does not and is not intended to create
17 any rights or obligations for any person or entity except for the parties hereto.
18 6.8 Authorized Signatures. Each party represents and warrants to the other that the
19 individual executing this Release on behalf of the County, or the individual executing the
20 Applicant's acknowledgement of this Release, as applicable, is duly authorized to do so and his
21 or her signature on this Release, or Applicant's acknowledgement of this Release, as
22 applicable, legally binds the party to the terms and conditions of this Release.
23 6.9 Electronic Signatures. The parties agree that this Release may be executed or
24 acknowledged, as applicable, by electronic signature as provided in this section.
25 (A) An "electronic signature" means any symbol or process intended by an individual
26 executing or acknowledging this Release to represent their signature, including but not limited to
27 (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an
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1 electronically scanned and transmitted (for example by PDF document) version of an original
2 handwritten signature.
3 (B) Each electronic signature affixed or attached to this Release (1) is deemed
4 equivalent to a valid original handwritten signature of the person signing this Release for all
5 purposes, including but not limited to evidentiary proof in any administrative or judicial
6 proceeding, and (2) has the same force and effect as the valid original handwritten signature of
7 that person.
8 (C) The provisions of this section satisfy the requirements of Civil Code section 1633.5,
9 subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title
10 2.5, beginning with section 1633.1).
11 (D) Each party using a digital signature represents that it has undertaken and satisfied
12 the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5),
13 and agrees that each other party may rely upon that representation.
14 (E) This Release is not conditioned upon the parties conducting the transactions under it
15 by electronic means and either party may execute or acknowledge this Release, as applicable,
16 with an original handwritten signature.
17 6.10 Counterparts. This Release, and Applicant's acknowledgement of this Release, as
18 applicable, may be executed in counterparts, each of which is an original, and all of which
19 together constitute this Release and the Applicant's acknowledgement of this Release.
20 [SIGNATURE PAGE FOLLOWS]
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1 This Release is executed on the date stated in the introductory clause of this Release.
2 COUNTY OF FRESNO
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4 B� -
5 Ernest Buddy Mendes, Chairman of the Board
of Supervisors of the County of Fresno
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ATTEST:
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9 Bernice E. Seidel, Clerk of the Board of the
Board of Supervisors
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11 By:
Deputy
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14 This Acknowledgement by Applicant is executed as of the date set forth under the
Applicant's signature below.
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ACKNOWLEDGEMENT BY APPLICANT:
16 Friant Ranch, Limited Partnership,
a California limited partnership
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18 By SWD investments-Friant Ranch, Inc.,
Managi General Partner
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By
Bryan N. ager, kretary
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Dated:
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Exhibit A
WAGNER&WAGNER,A PROFESSIONAL CORPORATION
7110 N. Fresno Street, Suite 340
Fresno, California 93720
(559) 224-0871
FAX: (559) 224-0885
b ryan(ibwagn erandwagn er.com
February 5, 2025
Board of Supervisors of the County of Fresno
Hall Of Records, Third Floor
2281 Tulare Street
Fresno, Ca 93721
Re: Friant Ranch, a Limited Partnership
Honorable Board Members:
We represent Friant Ranch, a Limited Partnership (Friant Ranch). Friant Ranch hereby
petitions the Board of Supervisors of the County of Fresno (County Board) for the mutual
termination of the Indemnification Agreement dated March 8, 2011 between the County
and Friant Ranch (the"Indemnification Agreement").
The Indemnification Agreement was entered into following the Land Use Approval (as
defined in the Indemnification Agreement) for the Friant Ranch project granted by the
County Board on February 1,2011 (collectively, the 2011 Land Use Approval).
In connection with a consolidated lawsuit by the Sierra Club, et al. (Fresno Superior
Court Case No. I ICECGO0706 (consolidated with Fresno Superior Court Case
Nos.I I CECG007C9 and 11 CECG00726)), the Supreme Court of the State of California
remanded the case to the Fifth District Court of Appeal, which remanded the case to the
trial court, which, on March 19, 2019, ordered, by writ of mandate, that the County
"[v]acate or set aside its approval of the Friant Ranch project and not approve the project
before preparing a revised EIR that provides an adequate discussion of health and safety
problems that will be caused by the rise in various pollutants resulting from the Project's
development."This means only"the revisions to the EIR"(as opposed to the entire EIR
as revised). Accordingly, the County is now preparing a Revised EIR(discussed below)
addressing operational air quality impacts.
On April 13, 2021, the County Board vacated the 2011 Land Use Approval and
certification of the EIR by approving Ordinance No. 21-005, Resolution No. 21-109, and
Resolution No. 21-110.
Friant Ranch is currently working with the County on the Partially Revised and
Recirculated Draft Environmental Impact Report (the "Revised EIR") as required by the
foregoing writ of mandate. The Revised EIR is nearing completion. The court still has
jurisdiction over the Revised EIR.
Board of Supervisors of the County of Fresno
February 5, 2025
Re: Friant Ranch, a Limited Partnership
Page 2
Because the Indemnification Agreement only covers the 2011 Land Use Approval which
has now been set aside, Friant Ranch requests the County to terminate the
Indemnification Agreement.
The Indemnification Agreement provides at Section 7(a)(ii) that the Indemnification
Agreement can be terminated upon Friant Ranch's petition to the County Board based
upon an opinion by Friant Ranch's legal counsel provided to the County Board.
Based upon the fact that the Indemnification Agreement relates solely to the 2011 Land
Use Approval that was set aside by the County Board in 2021, and without prejudice to
Friant Ranch's current application to request the County's recertification of the Revised
EIR and re-approval of the associated land use entitlements for the Friant Ranch Project,
we hereby represent and are of the opinion that:
1. The Indemnification Agreement can be terminated;
2. If in the event any demand, claim, action, proceeding, and/or litigation is brought
by anyone upon or after the date of this letter related to the 2011 Land Use
Approval, such demand, claim, action,proceeding, and/or litigation would be
completely and forever barred by the statute of limitations;
3. Each and every demand, claim, action, proceeding, and/or litigation that was
brought with regard to the 2011 Land Use Approval has been settled or a final
judgment has been rendered by a court of competent jurisdiction; and
4. We are not aware of any demand, claim, action,proceeding, and/or litigation
which is pending or threatened by anyone that could give rise to Friant Ranch's
obligation under the Indemnification Agreement to defend, indemnify and/or hold
harmless the County.
Please contact me with any questions or if you need any further information on this
matter.
Sincerely,
Wagn r Wagner, a Professiol al Corporation
By:
Bryan N agner
G:\Friant Ranch\Revised EIR Air Quality\Letters\Friant Ranch LP.Wagner Ltr.DR 2.CLEAN.docx