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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. r it 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, r Ar� 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 , �;tri>•iin� �rrl��l"MAri r.