Quarry Agreement, September 2006

Forestville Citizens for Sensible Growth and Forestville Planning Association have reached an agreement with Blue Rock Quarry regarding their requested expansion. 

In summary, the agreement provides: 

*Blue Rock will:

1. Phase in their requested expansion over approximately 10 years, hopefully to allow time for the mitigations to be put in place.
2. Restore Tilton Creek, a tributary of Green Valley Creek, consulting with the Department of Fish and Game
3. Screen operations from Scenic Highway 116
4. Halt southward expansion (toward Giovanetti Vineyard)
5. Instruct independent drivers to avoid driving past the elementary school during hours of 8-9AM and 2-3PM
6. Instruct independent drivers not to use Martinelli Road
7. In good faith explore the use of bio-diesel fuel for their rolling stock (their equipment is already powered by electricity), and encourage independent drivers to do the same
8. If available, install "smart alarms so that back up whistles can be eliminated
9. Limit Saturday operations to 10 days per year
10. Jointly decide, with local citizens, the feasability of meeting production needs by digging "down" rather than expanding footprint
11. Pay Forestville Planning Association $.5 per ton of production to use for Forestville downtown improvement

* The parties will work together in good faith to implement the agreement and work on other ways to fulfill our mutual desires to minimize the impact of Blue Rock's operations on the community, traffic, and the well being of all who live and work in Forestville.

Full Text

AGREEMENT 
This Agreement is entered into as of this ____ day of September, 2006, by and between Forestville Citizens for Sensible Growth (“FCSG”), an unincorporated association of citizens in Forestville, the Forestville Planning Association (“FPA”), a non profit corporation, (collectively “Forestville Citizens”), and the BoDean Company (“BoDean”). 

RECITALS 

1. The Forestville Planning Association and Forestville Citizens for Sensible Growth are grassroots citizens' organizations committed to assuring that development and business activities in and around Forestville are socially and environmentally responsible, and consistent with the community's vision for its future. Forestville is unincorporated, and thus has no local government. Consequently, decisions are made at the County level that have far reaching implications and impacts. Forestville is a vibrant, growing, and attractive small town, much beloved by its residents. These local non-profit groups, made up of Forestville residents and business owners, play a critical role in representing the interests of the community. For the past two years, the Forestville Planning Association has conducted a series of public Town Meetings to educate, inform, and receive input from the citizens of Forestville. The opinions of the community have formed the basis of this Agreement.
2. BoDean Company (BoDean) owns and operates a quarry in Forestville (Blue Rock), and is requesting approval of a conditional use permit and rezoning to permit the expansion of the Blue Rock Quarry that will potentially impact the traffic, air quality and natural environment of Forestville.
3. Sonoma County (“the County”) has prepared a final Environmental Impact Report (“FEIR”) for the proposed expansion of the Blue Rock Quarry. The County has also proposed a number of conditions of approval that will apply to the proposed expansion of the Blue Rock Quarry in the event it is approved by the County. The County Board of Supervisor’s is expected to act on BoDean’s application for expansion of the Blue Rock Quarry on September 26, 2006.
4. Forestville Citizens have submitted written and oral comments to the County objecting to the proposed expansion of the Blue Rock Quarry.
5. As an environmentally and socially responsible business enterprise, BoDean is committed to employing "best environmental practices" and operating Blue Rock in a manner that is respectful of the environment, and sensitive to the surroundings and the health and welfare of its neighbors.
6. To avoid potential litigation by Forestville Citizens over the proposed expansion of the Blue Rock Quarry, Forestville Citizens and BoDean have agreed to a series of measures designed to reduce the impacts of the Blue Rock Expansion on the community of Forestville. These measures are set forth below and are intended to govern operation of the Blue Rock Quarry and any expansion of the Blue Rock Quarry. The parties will jointly request that the County include certain measures (as identified below) in the conditions of approval attached to the proposed expansion of the Blue Rock Quarry. In the event that the County does not agree to include these provisions in the conditions of approval attached to the proposed expansion of the Blue Rock Quarry, the parties agree that this Agreement will control operation of the Blue Rock Quarry and the Blue Rock Expansion.

AGREEMENT 

1. DEFINITIONS

1.1. Blue Rock Quarry means the quarry operation permitted as of the date of this Agreement on Sonoma County Assessor Parcel Numbers 084-220-010 and 084-220-017.

1.2. Blue Rock Expansion means the expansion of the Blue Rock Quarry to increase production limits or to include any additional property other than the Assessor Parcels listed in section 1.1. 

1.3. Bypass means the Forestville bypass road as described in condition 25 of Conditional Use Permit.

1.4. Conditional Use Permit means the Conditional Use Permit for the Blue Rock Expansion currently under consideration by Sonoma County.

1.5. Maximum Allowable Production means the total amount of material sold or exported in any one year from the entire Blue Rock Quarry and Blue Rock Expansion.

II. PRODUCTION LIMITS

2.1. In order to more appropriately deal with the concern that production increases may overwhelm the infrastructure of Forestville and outpace the timeline for the construction of the Bypass, in the event that the Board of Supervisors approves the Blue Rock Expansion and allows for an increase in Maximum Allowable Production from the Blue Rock Quarry and Blue Rock Expansion to 400,000 cubic yards per year, this Maximum Allowable Production will be phased in as follows:

2.1.1. Beginning October 1, 2006 through September 30, 2008, Maximum Allowable Production shall not exceed an average of 200,000 cubic yards per year. 

2.1.2. Beginning October 1, 2008 through September 30, 2010, Maximum Allowable Production shall not exceed an average of 225,000 cubic yards per year. 

2.1.3. Beginning October 1, 2010 through September 30, 2012, Maximum Allowable Production shall not exceed an average of 275,000 cubic yards per year. 

2.1.4. Beginning October 1, 2012, Maximum Allowable Production shall be permitted to increase by 40,000 cubic yards per year until the Maximum Allowable Production of 400,000 cubic yards per year is met, or the Bypass is completed. When the by-pass is completed, the maximum allowable production limit shall be 400,000 CY per year.

III. COOPERATIVE EFFORTS BETWEEN THE PARTIES

3.1 The parties will cooperate to explore the feasibility of:
a. Accelerating the construction of the Bypass, including adoption of a "design-build" approach to its construction.

b. BoDean achieving its limits of production by mining "down" rather than extending its "footprint," if it is jointly determined that such mining will reduce the impact on Green Valley Creek;

c. Having Sonoma County and/or the appropriate water district allow BoDean to access and utilize reclaimed water for Blue Rock Quarry and the Blue Rock Expansion rather than fresh water in its operations.

d. Setting up an on-going working group to address and resolve any future issues that may arise. This group would consist of quarry owners/managers, school officials, and community representatives. The purpose of the group would be to establish and maintain a cooperative and collaborative working relationship among the stakeholders in the community, with particular respect to the issues arising from the local quarry mining.

IV. MEASURES TO REDUCE IMPACTS TO THE COMMUNITY AND THE ENVIRONMENT

4.1. BoDean agrees to take the following actions to reduce the impacts of the Blue Rock Quarry and the Blue Rock Expansion on the Forestville Community and the environment.

4.1.1. Restore Tilton Creek, a tributary of Green Valley Creek, utilizing its equipment, materials and personnel as required. Restoration shall be in a manner recommended by the State of California Department of Fish and Game;

4.1.2. Limit southerly expansion of its operations to its current position upon the permitted and vested parcel (084-220-017), and will not mine any further on this parcel to the southeast toward the Giovanetti vineyard and property;

4.1.3. Provide screening for its entry and road frontages, so that to the extent reasonably possible, quarrying is not evident from the Scenic Highway 116;

4.1.4. Explore and commit to using a blend mixture of bio-diesel for all quarry rolling stock when it is made available to the local area and when prices are of comparable level to traditional diesel fuel, and will encourage the independent truckers accessing the Quarry to do the same;

4.1.5. Post a sign requesting that truckers not use Martinelli Road, and will join local citizens in requesting that Sonoma County post appropriate signs on Martinelli Road banning heavy truck traffic except for deliveries;

4.1.6. Suggest to independent truck drivers accessing the Quarry that they avoid driving past Forestville Elementary School at times (8-9AM and 3-4PM) when children generally enter or leave the school;

4.1.7. Pursue the elimination of back-up whistles by installing "smart" back-up alarms, and until that such “smart” back-up alarms are installed, will limit use of back up whistles to between 6:30 am and 6:30 pm weekdays, and up to 10 Saturdays per year;

4.1.8. Not allow truck deliveries from the Quarry more than 10 Saturdays per year;

4.1.9. Agree not to seek permission to produce asphalt or other similarly processed products;

4.1.10. Voluntarily pay to FPA, a non-profit organization, a fee of $0.05 per ton leaving the Quarry, which payment shall be made to FPA in January of each year for the prior calendar year's production. FPA shall use truck fee funds to help pay for downtown Forestville improvements.

V. ENFORCEMENT

5.1. Conditional Use Permit. The parties shall jointly request the County to include in the Conditional Use Permit language reflecting the agreements set forth in Articles II and IV above. If the County does not include such language in the Conditional Use Permit, the parties agree that the provisions of this Agreement will control operation of Blue Rock Quarry and the Blue Rock Expansion.

5.2. Successors in Interest. The rights and obligations of this Agreement shall be binding on all successive owners, heirs, and assigns of the parties hereto. Without limiting the foregoing, this Agreement shall be binding on any party to whom BoDean transfers, sells, leases, or in anyway assigns any rights to the Blue Rock Quarry or the Blue Rock Expansion.

5.3. Run with the Land. The requirements of this Agreement run with the real property that comprises the Blue Rock Quarry and the Blue Rock Expansion. Prior to any lease, sale, transfer, or conveyance of any portion of the real property that is the subject of the project, the owner shall provide a copy of the adopted conditions to the prospective lessee, buyer, transferee, or one to whom the conveyance is made. This Agreement shall be recorded against the property that comprises the Blue Rock Quarry and the Blue Rock Expansion.

5.4. Judicial Review. This Agreement may be enforced by either party in a court of competent jurisdiction.

5.5. Remedies. The parties retain the full range of legal and equitable remedies to enforce this Agreement. The parties specifically acknowledge that specific performance and injunctive relief, in addition to damages, are available and appropriate remedies in the event of a breach of the obligations set forth in Articles 2, 3, and 4. The parties shall meet and confer and attempt to resolve their differences informally prior to commencing any action to enforce this Agreement. The prevailing party in any action to enforce this Agreement shall be entitled to its attorneys fees.

VI. MUTUAL RELEASE

6.1. Waiver of Claims by Forestville Citizens. Except as otherwise set forth in this Agreement, FPA and FCSG hereby agree to release and discharge BoDean from any claims under the California Environmental Quality Act and California Planning and Zoning law that arise out of County’s approval of BoDean’s 1997 application to expand the Blue Rock Quarry. This waiver does not apply to any claims that may arise as a result of changes in the project or circumstances as provided in Public Resources Code section 21166 nor does the waiver apply to any claims related to any new application by BoDean to expand or otherwise modify the Blue Rock Quarry or the Blue Rock Expansion.

6.2. Waiver of Claims by BoDean. BoDean hereby releases and discharges Forestville Citizens from any claims arising out of or related to the Blue Rock Quarry or County’s approval of BoDean’s 1997 application to expand the Blue Rock Quarry.

6.3. General Release. Subject to the limitations on the waiver of rights set forth in section 6.1, the parties intend hereby mutually waive any claims or benefits which they now have, or in the future may have, under the provisions of section 1542 of the Code, which reads as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

VII. CONTINGENCIES

7.1. The obligations set forth in this agreement assume, and are contingent upon, the County’s approval of the Blue Rock expansion project. If the Board of Supervisors disapproves the project, then neither party shall be subject to the obligations set forth in this agreement.

VIII. GENERAL PROVISIONS

8.1. Governing Law. California law shall govern the interpretation and enforcement of this Agreement.

8.2. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall be constitute but one and the same instrument.

8.3. Severability. In the event any of the terms, conditions, or covenants contained in this Agreement are held to be invalid, any such invalidity shall not affect any other terms, conditions or covenants contained herein which shall remain in full force and effect.

8.4. Captions. Paragraph titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or any provision thereof.

8.5. Entire Agreement. This Agreement constitutes the entire agreement between the parties and it is expressly understood that the Agreement has been freely and voluntarily entered into by the parties with the advice of counsel, who have explained the legal effect of this Agreement. The terms of this Agreement are contractual and not mere recitals. This Agreement may not be altered, modified or otherwise changed in any respect except in writing, duly executed by the parties or their authorized representatives. This Agreement is fully integrated.

IN WITNESS THEREOF, the parties to this Agreement have cause this Agreement to be duly executed in their respective names by one of their respective officers or representatives on the dates indicated below. 

Date: September ____, 2006 
FORESTVILLE CITIZENS FOR SENSIBLE GROWTH

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By: 


Date: September ____, 2006 
FORESTVILLE PLANNING ASSOCIATION

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By: 


Date: September ___, 2006 
BODEAN COMPANY 

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By: