HomeMy WebLinkAboutCopper River Development Company - Indemnity agreementMY OF FRESNO
City Clerk's Office (Original)
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is made and effective as of March 3, 2008, by and
between the City of Fresno, a municipal corporation (the "City"), and Copper River Development Company,
Inc., a California corporation ("Developer').
BACKGROUND
A. On June 14, 2004, after holding a hearing, Council voted to initiate and establish an impact fee
program for the Copper River Ranch Area as defined and shown on the attached Exhibit "A" which represents
a map of the area subject to the fee.
B. Between July 2004 and August 2007, Developer constructed improvements in and around the
Copper River Ranch Area pursuant to conditions of development entitlements, including but not limited to,
street, trail, parks, and sewer improvements.
C. On August 21, 2007, Council accepted and adopted the Copper River Ranch Impact Fee Study
and adopted the 461` amendment to the Master Fee Schedule to establish the Copper River Ranch Fees.
D. The stated purpose of the Copper River Ranch Fees was to establish a funding/reimbursement
mechanism as a means for development and the City to facilitate the orderly acquisition and installation of
public facilities specific to the Copper River Ranch Development Area.
E. Developer is expecting reimbursement for the costs it incurred constructing improvements
between July 2004 and August 2007 and for improvements that will be constructed in the future.
F. The consultant that prepared the Copper River Ranch Impact Fee Study was hired and paid by
the Developer.
G. The adoption of the Copper River Ranch Fees is effective upon the execution of an indemnity
agreement wherein the Developer agrees to indemnify the City against action arising out of the adoption, levy,
imposition or use and application of the fees.
H. The City intends to adopt an ordinance and/or policies to implement the collection of the
Copper River Ranch Fees.
I. The parties do not intend this Agreement to be used and/or interpreted to address the rights
and obligations of the parties in respect to the Copper River Fees and/or reimbursements.
AGREEMENT
NOW, THEREFORE, in consideration of City's adoption of the Copper River Fees, the parties to this
Agreement, and the other recitals A -I provided above, agree as follows:
1. INDEMNITY. The Developer shall indemnify, hold harmless and defend the City and each of
its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages, incurred by the City from any and all claims, demands and actions in law or
equity (specifically including, but not limited to, any writ or other action under the Mitigation Fee Act,
Government Code Section 66000, et sequentes) and including reasonable attorneys fees and litigation
expenses, arising or alleged to have arisen directly or indirectly out of the adoption of the Copper River Ranch
Fees.
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2. TERM. This Agreement shall remain in effect for so long as the Copper River Ranch
Fees are in effect and being collected and imposed by the City.
3. RIGHTS CUMULATIVE: INTENDED SCOPE OF INDEMNIFICATION. The rights to
indemnification in advancement of expenses provided in this Agreement shall be in addition to any rights to
which City may otherwise be entitled and shall inure to the benefit of the heirs, executors, administrators, and
assignors of City. It is the intent of the Developer that the indemnity provided to City under this Agreement
shall be of the broadest scope legally permissible according to the terms hereof and that all provisions of this
Agreement shall be interpreted to give the City maximum benefit; provided, however, that all provisions of
this Agreement shall be construed in such a manner as to comply with legal requirements.
4. MISCELLANEOUS.
(a) GOVERNING LAW. It is the intention of the parties to this Agreement that the laws
of the State of California (irrespective of its choice of law principles) shall govern the validity of this
Agreement, the construction of its terms and the interpretation and enforcement of the rights and duties of the
parties under this Agreement.
(b) BINDING UPON SUCCESSORS AND ASSIGNS. Subject to and unless otherwise
provided in this Agreement, each and all of the covenants, terms, provisions and agreements contained herein
shall be binding upon and shall inure to the benefit of the successors, executors, heirs, representatives,
administrators, and assigns of the parties to this Agreement.
(c) SEVERABILITY. If any provision of this Agreement or the application thereof shall
for any reason and to any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall be interpreted so as best to reasonably
affect the intent of the parties to this Agreement. The parties further agree to replace any such void or
unenforceable provision of this Agreement with a valid and enforceable provision which shall achieve to the
fullest extent possible, the economic, business and other purposes of the void or unenforceable provision.
(d) THE ENTIRE AGREEMENT. This Agreement, together with any agreements and
documents referenced herein, constitutes the entire understanding and agreement of the parties to this
Agreement with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements
or understandings, inducements or conditions, express or implied, written or oral, between the parties with
respect to this Agreement. The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof. This Agreement shall no be used and/or
interpreted to address the rights and obligations of the parties in respect to the Copper River Fees and/or
reimbursements.
(e) COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be an original as against any party whose signature appears thereon and all of which
together shall constitute one and the same instrument. This Agreement shall become binding when one or
more counterparts thereof, individually or taken together, shall bear the signatures of all of the parties reflected
hereto as signatories.
(f) AMENDMENTS AND WAIVERS. Any terms or provisions of this Agreement may
be amended and the observance of any term of this Agreement may be waived, either generally or in a
particular instance and either retroactively or prospectively, only by a writing signed by the party to be bound
thereby. The waiver by a party of any breach hereof for default under this Agreement or in the performance
hereof shall not be deemed to constitute a waiver of any other default or succeeding breach of default.
(g) ATTORNEYS FEES. Should suit or arbitration be brought to enforce or interpret any
part of this Agreement, the prevailing party shall be entitled to recover as an element of the cost of suit or
arbitration and not as damages, reasonable attorneys fees to be fixed by the court (including without limitation,
costs, expenses and fees on any appeal). The prevailing party shall be the party entitled to recover its costs of
suit or arbitration, regardless of whether such suit or arbitration precedes the final judgment. A party not
entitled to recover its costs shall not be entitled to recover attorney's fees. No sum for attorney's fee shall be
counted in calculating the amount of a judgment for purposes of determining if a party is entitled to recover
costs or attorneys' fees.
(h) NOTICES. Whenever any party to this Agreement desires or is required to give any
notice, demand or request with respect to this Agreement, each such communication shall be in writing and
shall be effective only if it is delivered by personal service or mailed, United States certified mail, return
receipt requested, postage pre -paid, addressed as follows:
CITY:
Director of Public Works
City of Fresno
2600 Fresno Street
Fresno, California 93721-3602
DEVELOPER:
Copper River Development Company, Inc.
1396 West Herndon, Suite 101
Fresno, CA 93711
Communication shall be effective when they are received by the addressee; but if sent by certified mail in the
manner set forth above, they shall be effective three (3) business days after being deposited in the United
States mail. Any party may change its address for communications by giving notice to the other party in
conformity with this section.
(i) ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. No provision of this
Agreement is intended, nor shall be interpreted, to provide or create any third party beneficiary rights or any
other rights of any kind in any client, customer, affiliate, shareholder or partner or any party to this Agreement
or any other person; unless specifically provided otherwise herein, and except as so provided, all provisions
hereof shall be personal and solely between the parties to this Agreement.
0) SURVIVAL OF RIGHTS. The rights conferred on City by this Agreement shall
continue after termination of this Agreement or City has ceased to perform the services subject to this
Agreement and shall inure to the benefit of City's heirs, executors, administrators, and assigns.
(k) SUBROGATION. Developer may, but is not obligated to, obtain and maintain
insurance in the event City should make a claim to the Developers as a result of any loss, liability, fines,
penalties, forfeitures, costs and damages that arise as an incident of the performance of this Agreement. If the
Developer maintains insurance to cover any claim made by the City for indemnification under this Agreement,
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Developer shall insure that any insurance provided to cover any of the above perils shall contain a waiver of
any right of subrogation that any such insurer may acquire against the City by virtue of any payment of any
loss under that insurance.
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the day first
above written.
CITY:
CITY OF FRESNO,
a municipal corporation
By: 4zz
ANDREW T.SOUZA
City Manager
Dated
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: _ o
Kathryn C. Ph lan,Deputy
Dated: X LIt's
KCP:eb:Sz[42331eb:sz4wp] 10/1/07
CO ERfVEDE LOP NT
M C.:
B.
Farid Assemi, Second Vice -President
Dated: 3/ 3 / Z OOK
By: w �_ �j
even G. Rau, Secretary
Dated: '4 � 4 3 ZODk
ATTEST:
REBECCA E. KLISCH
City Clerk ,
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