Resolution No. 10118RESOLUTION NO. 10,118
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN INDEMNITY AGREEMENT WITH KERN COUNTY IN
CONNECTION WITH THE RED ROCK WIND PROJECT AND A
CONSISTENCY ZONE CHANGE
WHEREAS, the City of Vernon ("City") is a chartered
municipal corporation of the State of California that owns and
operates a system for the generation, purchase, transmission,
distribution and sale of electric capacity and energy; and
WHEREAS, the City owns or has rights to property in the
Tehachapi Wind Resource Area of Tehachapi, California in Kern County
with the potential for development of a large amount of renewable
energy resources; and
WHEREAS, the City has requested that Kern County ("County")
approve a zone change and conditional use permit for the wind energy
project known as the "Red Rock Wind Project" and undertake necessary
actions under the California Environmental Quality Act; and
WHEREAS, unrelated to the Red Rock Wind Project, the City
has requested a consistency zone change for part of the City's
property in Kern County to make the zoning consistent with the
County's general plan, as required by state law; and
WHEREAS, the City desires to indemnify the County from
liability or loss connected with the Red Rock Wind Project approvals
and the Consistency Zone Change; and
WHEREAS, by memo dated December 9, 2009, the Director of
Light & Power recommends the City enter into an agreement setting
forth the terms and conditions under which the City will indemnify the
County from liability or loss connected with the Red Rock Wind Project
and the Consistency Zone Change (collectively, the "Projects").
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon does
hereby find and determine that the recitals contained hereinabove are
true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Agreement with the County, in substantially the form
attached hereto as Exhibit A and incorporated by reference and
authorizes the City Administrator, or his designee, to negotiate with
the County modifications to the Agreement which in the opinion of the
City Attorney will better protect the City.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for,
and on behalf of, the City of Vernon as attached in Exhibit A, or
alternatively, to execute a modified Agreement -if- the changes
negotiated with the County are approved by the City Attorney, and the
City Clerk, or Deputy City Clerk, is hereby authorized to attest
thereto
SECTION 4: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to take whatever
action is deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
transactions herein approved or authorized.
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SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or her designee, to send the fully executed
Agreement to the County.
SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered in the File of
Resolutions of the Council of this City.
APPROVED AND ADOPTED this 14th day of December, 2009.
AT EST:
.CR1r�
MANUELA GIRON, C'ty Clerk
��r�►6�-
Name:
Hilario Gonzales
Title: Mayor /
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 10,118, was
duly passed, approved and adopted by the City Council of the City of
Vernon at a regular meeting of the City Council duly held on Monday,
December 14, 2009, and thereafter was duly signed by the Mayor or Mayor
Pro-Tem of the City of Vernon.
Executed this day of December, 2009, at Vernon, California.
(SEAL)
MANUELA GIRON,-City Clerk
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EXHIBIT A
AGREEMENT
THIS AGREEMENT, made and entered into this day of , 200_,
by and between COUNTY OF KERN, a political subdivision of the State of California (hereinafter
referred to as "COUNTY"), and the CITY OF VERNON, a California charter city and municipal
corporation (hereinafter referred to as "OWNER");
WITNESSETH:
WHEREAS, in consideration of the COUNTY's approval of a zone change and conditional use permit to
allow the wind energy project known as the Red Rock Wind Project and the related CEQA approvals
granted by COUNTY thereunder, the OWNER desires to indemnify the COUNTY from liability or loss
connected with the Red Rock Wind Project approvals herein; and
WHEREAS, unrelated to the Red Rock Wind Project, but also benefiting the OWNER, the COUNTY has
approved a consistency zone change cases ( ZCC# 8, Map # 109, ZCC # 9, Map 109, ZCC # 6, Map # 131,
ZCC # 7, Map #131, ZCC # 3, Map 132-132, 1/2, ZCC # 4, Map # 132-132 1/2 ) ("Consistency Zone
Change", and, together with the Red Rock Wind Project, the "Projects"), over part of the OWNER'S
property to bring the zoning into consistency with the general plan, as is required by state law, and the
OWNER desires to indemnify the COUNTY from liability or loss connected with the Consistency Zone
Change herein;
NOW, THEREFORE, IT IS MUTUALLY AGREED between COUNTY and OWNER as
follows:
1. The OWNER shall defend, indemnify, and hold harmless the COUNTY and its agents,
officers, and employees from any claim, action, or proceeding against the COUNTY or its agents,
officers, or employees to attack, set aside, void, or annul the Projects or any prior or subsequent related
development approvals or to attack the adequacy of Project conditions imposed by the COUNTY or any
Revision Date
(CITY OF VERNON) —1— (12/09/09)
of its agencies, departments, commissions, agents, officers, or employees concerning the said Projects, or
to impose personal liability against such agents, officers, or employees resulting from their involvement
in the Projects, which claim, action, or proceeding is brought within the time period provided by law,
including any claim for private attorney general fees claimed by or awarded to any party from COUNTY.
To the extent that COUNTY uses any of its resources responding to such claim, action, or proceeding,
OWNER will reimburse COUNTY upon demand. Such resources include, but are not limited to, staff
time, court costs, County Counsel's time at their regular rate for external or non -County agencies, or any
other direct or indirect cost associated with responding to the claim, action, or proceedings.
The OWNER'S obligations under this agreement shall apply regardless of whether any other
permits or entitlements are issued. These obligations shall be binding on successors and assigns of the
real property benefitted by approval of the Projects, and OWNER shall so obligate all transferees and
assigns.
2. The COUNTY will promptly notify OWNER of any such claim, action, or proceeding
and, if the COUNTY should fail to cooperate fully in the defense, the OWNER shall not thereafter be
responsible to defend, indemnify, and hold harmless the COUNTY or its agents, officers, and employees
pursuant to this condition.
3. The COUNTY may, within its unlimited discretion, participate in the defense of any such
claim, action, or proceeding if the COUNTY defends the claim, action, or proceeding in good faith.
4. The OWNER shall not be required to pay or perform any settlement of such claim,
action, or proceeding unless the settlement is approved in writing by OWNER.
5. All notices to OWNER under this Agreement shall be deemed valid and effective five (5)
calendar days following deposit in the United States mail, postage prepaid, by certified and/or registered
mail, addressed to the City Administrator, City of Vernon, 4305 Santa Fe Avenue, Vernon,
California 90058.
All notices to COUNTY under this Agreement shall be deemed valid and effective when
Revision Date
(CITY OF VERNON) —2— (12/09/09)
personally served upon the Planning Department Director or upon deposit in the United States mail,
postage prepaid, by certified and/or registered mail, addressed to the Director, Kern County Planning
Department, 2700 "M" Street, Suite 100, Bakersfield, California 93301.
6. This Agreement represents the complete understanding between the parties with respect
to matters set forth herein.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be executed on
the date hereinabove first written.
OWNER COUNTY OF KERN
City of Vernon
Mayor / Mayor Pro-Tem
ATTEST:
Manuela Giron, City Cleric
APPROVED AS TO FORM:
Laurence S. Wiener, City Attorney
Director, Planning Department
APPROVED AS TO FORM:
Office of County Counsel
Deputy
Revision Date
(CITY OF VERNON) —3— (12/09/09)
CITY CLERK'S OFFICE
INTEROFFICE MEMORANDUM
DATE: January 19, 2010
TO: Donal O'Callaghan, Director of Light & Power
FROM: Nelly Giron, City Clerk
RE: Resolution No. 10,118 - A Resolution of the City Council of
the City of Vernon Approving and Authorizing the Execution of
an Indemnity Agreement with Kern County in Connection with
the Red Rock Wind Project and a Consistency Zone Change
Transmitted herewith is a copy of the fully executed agreement and
Resolution No. 10,118 referenced above, which was approved by City
Council on December 14, 2009.
Thank you.
NG : dj
c: Resolution No. 10,118
Agreement File No. 09-147
KERN COUNTY PLANNING DEPARTMENT
TED JAMES,AICP, Director Resource Management Agency
2700 "M" Street, Suite 100, Bakersfield, CA 93301 Ted James Interim, RMA Director
(661)862-8600
FAX: (661) 862-8601
MEMORANDUM TRANSMITTAL
SENT BY: Lorelei H.Oviatt, A.I.C.P
Special Projects Division Chief
Phone: (661) 862-8866
Fax: (661) 862-8601 e-mail Loreleio@co.kern.ca.us
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DATE: January 15, 2010
TO: City of Vernon Office of the City Clerk
4305 Santa Fe Avenue
Vernon, California 90058
Attn: Nelly Giron
RE: Red Rock Wind Project — Executed Original Indemnification Agreement
COMMENT:
As requested.
Thank you.
Lorelei
AGREEMENT
THIS AGREEMENT, made and entered into this l day of 00
by and between COUNTY OF KERN, a political subdivision of the State of California (hereinafter
referred to as "COUNTY"), and the CITY OF VERNON, a California charter city and municipal
corporation (hereinafter referred to as "OWNER");
WITNESSETH:
WHEREAS,: in consideration of the COUNTY's approval of a zone change and conditional use permit to
allow the wind energy project known as the Red Rock Wind Project and the related CEQA approvals
granted by COUNTY thereunder, the OWNER desires to indemnify the COUNTY from liability or loss
connected with the Red Rock Wind Project approvals herein; and
WHEREAS, unrelated to the Red Rock Wind Project, but also benefiting the OWNER, the COUNTY has
approved a consistency zone change cases ( ZCC# 8, Map #109, ZCC # 9, Map 109, ZCC # 6, Map #131,
ZCC # 7, Map #131, ZCC # 3, Map 132-132, '/z, ZCC # 4, Map # 132-132 '/2 ) ("Consistency Zone
Change", and, together with the Red Rock Wind Project, the "Projects"), over part of the OWNER'S
property to bring the zoning into consistency with the general plan, as is required by state law, and the
OWNER desires to indemnify the COUNTY from liability or loss connected with the Consistency Zone
Change herein;
NOW, THEREFORE, IT IS MUTUALLY AGREED between COUNTY and OWNER as
follows:
1. The OWNER shall defend, indemnify, and hold harmless the COUNTY and its agents,
officers, and employees from any claim, action, or proceeding against the COUNTY or its agents,
officers, or employees to attack, set aside, void, or annul the Projects or any prior or subsequent related
development approvals or to attack the adequacy of Project conditions imposed by the COUNTY or any
Revision Date
(CITY OF VERNON) —1— (12/09/09)
of its agencies, departments, commissions, agents, officers, or employees concerning the said Projects, or
to impose personal liability against such agents, officers, or employees resulting from their involvement
in the Projects, which claim, action, or proceeding is brought within the time period provided by law,
including any claim for private attorney general fees claimed by or awarded to any party from COUNTY.
To the extent that COUNTY uses any of its resources responding to such claim, action, or proceeding,
OWNER will reimburse COUNTY upon demand. Such resources include, but are not limited to, staff
time, court costs, County Counsel's time at their regular rate for external or non -County agencies, or any
other direct or indirect cost associated with responding to the claim, action, or proceedings.
The OWNER'S obligations under this agreement shall apply regardless of whether any other
permits or entitlements are issued. These obligations shall be binding on successors and assigns of the
real property benefitted by approval of the Projects, and OWNER shall so obligate all transferees and
assigns.
2. The COUNTY will promptly notify OWNER of any such claim, action, or proceeding
and, if the COUNTY should fail to cooperate fully in the defense, the OWNER shall not thereafter be
responsible to defend, indemnify, and hold harmless the COUNTY or its agents, officers, and employees
pursuant to this condition.
3. The COUNTY may, within its unlimited discretion, participate in the defense of any such
claim, action, or proceeding if the COUNTY defends the claim, action, or proceeding in good faith.
4. The OWNER shall not be required to pay or perform any settlement of such claim,
action, or proceeding unless the settlement is approved in writing by OWNER.
5. All notices to OWNER under this Agreement shall be deemed valid and effective five (5)
calendar days following deposit in the United States mail, postage prepaid, by certified and/or registered
mail, addressed to the City Administrator, City of Vernon, 4305 Santa Fe Avenue, Vernon,
California 90058.
All notices to COUNTY under this Agreement shall be deemed valid and effective when
Revision Date
(CITY OF VERNON) —2— (12/09/09)
personally served upon the Planning Department Director or upon deposit in the United States mail,
postage prepaid, by certified and/or registered mail, addressed to the Director, Kern County Planning
Department, 2700 "M" Street, Suite 100, Bakersfield, California 93301.
6. This Agreement represents the complete understanding between the parties with respect
to matters set forth herein.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be executed on
the date hereinabove first written.
OWNER
City of Vernon
ATT ST:
Manuela Giron, City Cl k
APP YED S TO FORM .
f
Laurence S. Wiener, City Attorney
COUNTY OF KERN
Director, P nni g Department
APPROVED AS TO FORM:
Office of County Counsel
Deputy
Revision Date
(CITY OF VERNON) —3— (12/09/09)
.A — •-
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
December 15, 2009
Lorelei H. Oviatt, AICP
Division Chief
Kern County Planning Department
2700 "M" Street
Bakersfield, CA 93301
Re: County of Kern - Red Rock Wind Project
Dear Ms. Oviatt:
For signature by the appropriate party, transmitted herewith are
two partially executed agreements approved by City Council on
December 14, 2009, through Resolution No. 10,118.
Please ensure that a fully executed original agreement is
returned to the attention of the undersigned.
If you have any questions regarding this matter, please call Mr.
Donal O'Callaghan, at (323) 583-8811 ext. 834.
Very truly yours,
NNe 11 y qGir n
City Clerk
NG : dj
c: Donal O'Callaghan
Purchasing Department
Resolution No. 10,118
Agreement File No. 09-147
Excfusivefy Industrial
RECEIVED
DEC 0 9 2009
CITY CLERK'S OFFICE STAFF REPORT
LIGHT & POWERS
DATE: December 9, 2009
TO: Honorable Mayor and City Council
FROM: Donal O'Callaghan, Director of Light & Power
RE: Indemnity Agreement with Kern County — Red Rock Wind Project and
Consistency Zone Change
In order to accomplish the Red Rock Wind Project, the City has requested a number of
approvals from Kern County, including a conditional use permit. The County is also
processing a zone change for certain parcels of land within Kern County, including
some of the City's parcels, in order to make those parcels consistent with the County's
general plan. While the consistency re -zone is not necessary for the Red Rock Wind
Project, having general plan consistency will facilitate the approval of the City's
conditional use permit.
Kern County has requested that the City execute an indemnity agreement with respect
to any claims that result from the approval of the zone change and any County
approvals related to the Red Rock Wind Project. Under the agreement, the City would
defend and indemnify the County for any such claims.
Recommendation:
I recommend the City Council approve an indemnification agreement with Kern County
on the next agenda council meeting which is Monday, December 14, 2009.
DO: JV
Attachment