HomeMy WebLinkAboutCalifornia Dairies - Indemnification AgreementINDEMNIFICATION AGREEMENT
APN:467-076-15
THIS AGREEMENT is entered into this 16°i day of December, 2010 by and between the
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v ` CITY OF FRESNO, a municipal corporation (hereinafter CITY), and California Dairies, Inc.
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(hereinafter APPLICANT).
WITNESETH:
WHEREAS, APPLICANT has applied to CITY for a LAND USE APPROVALS
affecting the Subject Property described as follows:
[Legal Description];
and with the address of 755 F St., Fresno, CA 93706; and,
WHEREAS, litigation challenging the granting or issuance of land use approvals by
governmental bodies is proliferating, and such litigation exposes CITY to potential liability for
damages, costs, and attorney's fees; and,
WHEREAS, in such litigation, the person or entity receiving land use approvals is
designated as a real party in interest and is the party that primarily and directly benefits from the
granting or issuance of the land use approvals; and
WHEREAS, the City's Director of Development and Resource Management, Fresno City
Planning Commission and Fresno City Council are objective decision-making body, and
therefore have no special interest in the approval or denial of land use applications or the
outcome of litigation arising from such grant or denial, except for promoting adopted public
policy; and
WHEREAS, CITY incurs great expense in the active defense of such litigation and, if
unsuccessful, may also be required to pay the prevailing party's attorney's fees and costs; and,
WHEREAS, fairness and sound fiscal policy require that the person or entity receiving
the benefits of a land use approval should also bear the burden of the liability for potential
injuries and the expense of such litigation and claims; and
WHEREAS, APPLICANT and CITY mutually desire to enter into this Indemnification
Agreement, by which APPLICANT shall indemnify, (at CITY's request) defend, save and hold
CITY harmless, in order that CITY shall bear no fiscal or financial burden whatsoever resulting
from any litigation challenging the CITY's grant or issuance of land use approvals to
APPLICANT or any litigation arising out of personal injury, wrongful death or property damage
arising or allegedly arising out of the Alley Vacation.
DEFINITIONS:
(a) APPLICANT means California Dairies, Inc., and its heirs, assigns or
successors in interest;
(b) LAND USE APPROVAL, for purposes of this Agreement, shall mean any
benefits arising from any of the following: the grant of Site Plan Review Application No. 5-10-
034 and any document prepared pursuant to the California Environmental Quality Act (CEQA)
or other law that is approved in conjunction with Site Plan Review No. 5-10-034. LAND USE
APPROVAL does not include a ministerial permit.
(c) CITY shall mean the City of Fresno, a municipal corporation.
(d) PROJECT shall mean the use of the land authorized by the LAND USE approval
at property located at 755 F Street, Fresno, California.
2. HOLD HARMLESS AND INDEMNIFICATION RELATED TO LAND
USE APPROVAL
To the furthest extent allowed by law, Applicant shall indemnify, hold harmless and
defend City and each of its officers, officials, employees, agents and volunteers from any and all
loss, liability, fines, penalties, forfeitures, costs and damages (whether statutory, in contract, tort
or strict liability, including but not limited to personal injury, death at any time and property
damage) incurred by City in connection with any and all claims, demands and actions in law or
equity (including attorney's fees and litigation expenses) arising from, resulting from, or in
connection with any CITY action in granting, issuing or approving the LAND USE:
APPROVAL. Applicant's obligations under the preceding sentence shall apply regardless of
whether CITY or any of its officers, officials, employees, agents or volunteers are actively or
passively negligent, but shall not apply to any loss, liability, fines, penalties forfeitures, costs or
damages caused solely by the gross negligence or willful misconduct of the City or any of its
officers, officials, employees, agents or volunteers.
3. NOTIFICA'T'IONS AND COOPERATION BY CITY:
CITY shall notify APPLICANT within a reasonable period of time of its receipt of any
demand, claim, action, proceeding, or litigation in which CITY is to be indemnified and held
harmless by APPLICANT. If CITY requests that APPLICANT defend CITY, it shall notify
APPLICANT in writing within a reasonable period of time of its receipt of any such demand,
claim, action, proceeding, or litigation and CITY shall cooperate fully in such defense.
CITY shall have the right to select the attorney or attorneys who will defend the CITY.
APPLICANT agrees to accept such selection. APPLICANT further agrees to be fully
responsible for any and all costs and attorney's fees generated by said attorney(s) in the defense
of CITY in any claim, demand, action, proceeding or litigation arising out of the project.
CITY'S PARTICIPATING IN DEFENSE:
Nothing contained herein shall prohibit CITY, in its sole discretion, from participating in
the defense of any demand, claim, action, proceeding, or litigation over and above representation
by outside counsel, or from participating in the defense of any demand, claim, action,
proceeding, or litigation. If CITY elects to also defend, it shall, do so in good faith. In no event
shall CITY'S participation in the defense of any demand claim, action, proceeding, or litigation
affect the obligations imposed upon APPLICANT in section 2 of this Agreement.
REIMBURSEMENT OF CITY'S COSTS RE: ADMINISTRATIVE RECORD:
Without limiting the CITY'S and the APPLICANT'S right to recover the costs of
preparing the administrative record from the petitioner or plaintiff in any litigation challenging a
land use approval or the CITY's right to recover its costs from APPLICANT under paragraph 2
herein above, APPLICANT agrees to reimburse the CITY for its actual cost incurred, including,
but not limited to, CITY staff and attorney time expended for certifying and/or preparing the
administrative record in connection with and proceedings related to the subject matter of this
Indemnification Agreement. If the CITY is not timely reimbursed by other parties,
APPLICANT shall pay such cost to CITY before receiving such administrative record. To the
extent the costs of the administrative record or any related costs paid by the APPLICANT are
recovered by the CITY in any litigation, the CITY shall reimburse the APPLICANT.
6. BINDING OBLIGATION:
APPLICANT hereby agrees that this Agreement shall be recorded in the office of the
Recorder of the County of Fresno and the obligations thereunder shall run with and be
appurtenant to and be a charge upon the land and be binding on APPLICANT's successor(s) in
interest, heirs, transferee(s), and assign(s).
COVENANT NOT TO SUE:
(a) APPLICANT on behalf of itself, and its successors, and assigns, hereby
fully releases CITY, its successors, and all other persons and associations, known or unknown,
from all claims and causes of action by reason of any damage which has been sustained, or may
be sustained, as a result of the above-described land use approval and covenants not to sue
relating to such claims.
(b) APPLICANT acknowledges and agrees that this release applies to all
claims that APPLICANT may have against CITY arising out of the above-described land use
approval for injuries, damages, or losses to APPLICANT s person and property, real or personal,
whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, or
patent or latent.
(c) APPLICANT certifies that APPLICANT has read section 1542 of the
Civil Code, set out below.
Code.
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.
(d) APPLICANT hereby waives application of section 1542 of the Civil
(e) APPLICANT understands and acknowledges that the significance and
consequence of this waiver of section 1542 of the Civil Code is that even if APPLICANT should
eventually suffer additional damages arising out of the above-described land use approval,
APPLICANT will not be permitted to make any claim for those damages. Furthermore,
APPLICANT acknowledges that APPLICANT intends these consequences even as to claims for
damages that may exist as of the date of this release but which APPLICANT does not know
exist, and which, if known, would materially affect APPLICANT's decision to execute this
release, regardless of whether APPLICANT's lack of knowledge is the result of ignorance,
oversight, error, negligence or any other cause.
(f) APPLICANT warrants and represents that in executing this release,
APPLICANT has relied on legal advice from the attorney of APPLICANT's choice that the
terms of this release and its consequences have been completely read and explained to
APPLICANT by that attorney, and that APPLICANT fully understands the terms of this release.
(g) APPLICANT acknowledges and warrants that APPLICANT's execution
of this release is free and voluntary.
(h) This release pertains to a disputed claim and does not constitute an
admission of liability by CITY for the above-described land use approval.
(i) The provisions of paragraph 10 herein below shall not apply to this
covenant not to sue.
8. TERMINATION OF AGREEMENT:
(a) This Indemnification Agreement may be terminated only upon the
following conditions:
(i) The parties agree to terminate this Indemnification Agreement by their
express, mutual written consent; or
(ii) The APPLICANT petitions the Fresno City Council to terminate this
Indemnification Agreement by providing to the Council a written opinion of APPLICANT's
legal counsel and the Fresno City Council, in its sole discretion, determines that termination of
this Indemnification Agreement is in the best interest of the public and the CITY. It is
understood and agreed that the CITY, in making such determination of whether to terminate this
Indemnification Agreement, may reasonably rely upon said opinion of APPLICANT'S legal
counsel.
(b) If this Indemnification Agreement is terminated as provided above, the
CITY shall execute a written release of APPLICANT'S obligations under this Indemnification
Agreement. It shall be APPLICANI"s responsibility to record such document with the office of
the Recorder of the County of Fresno.
9. ATTORNEY'S FEES:
If either party is required to commence any proceeding or legal action to enforce or
interpret any term, covenant or condition of this Agreement, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable attorney's
fees and legal expenses.
10. SEVERABILITY:
If any provision of this Agreement is determined to be invalid in a final judgment by a
court of competent jurisdiction, each and every other provision hereof shall remain in full force
and effect.
11. CONSTRUCTION OF CONTRACT:
The parties hereby acknowledge that they and their respective counsel have cooperated in
the drafting and preparation of this agreement, for which reason this agreement shall not be
construed against any party as the drafter thereof.
IN WITNESS WHEREOF, APPLICANT and CITY hereby execute this
Agreement.
DATED: //—/Z_�E) APPLICANT:
DATED:
ATTEST:
REBECCA E. KLISCH
CITY CLERK
By -
Deputy
APPROVED AS TO FORM:
JAMES C. SANCHEZ
CITY ATTORNEY
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;,2, Deputy
Date:
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