HomeMy WebLinkAboutVerizon Wireless - Indemnification -2009n
THIS AGREEMENT Is entered into this J-< day of Lau,—h. .2909
by and between the CITY OF FRESNO, a municipal corporation (hereinafter CIFf), and
Fresno MSA Limited Partnership, a California limited partnership d/b/a Verizon Wireless
(hereinafter APPLICANT).
WITNESETH:
WHEREAS, APPLICANT has applied to CITY for a IAND USE APPROVALS
affecting the Subject Property described in Exhibit "A." and,
WHEREAS, litigation challenging the granting or issuance of land use approvals
by governmental bodies is proliferating, and such I@igation 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 Me party that pdmanly and directly benefhs
from the granting or issuance of the land use approvals; and
WHEREAS, the City's Director of Planning and Development, Fresno City
Planning Commission and Fresno City Council are objective decislan-making bodes,
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 as to those which
promote 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, faimess 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 on the terms set forth below
I . DEFINITIONS:
(a) APPLICANT means Fresno MSA Limited Partnership, a California
limited partnership d@la Verizon Wireless, and its heirs, assigns or successors In
interest,
(b) LAND USE APPROVAL, for purposes of this Agreement, shall
mean any of the following: the grant of Conditional Use Permit No. C-09-58, and any
categorical exemption or other determination by the CITY under the California
Environmental Quality Ad (CEQA) or other law that is made in conjunction with the
Conditional Use Permit No. C-09-58. 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: C-09-58.
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, tart 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 Nutty (including altomey's fees
and litigation expenses) arising from, resulting from, or in connection with any CIT!
action in granting, issuing or approving the LAND USE APPROVAL. Applicant's
obligations under the peopling 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 fodeitures, costs of
damages caused solely by the active negligence or willful misconduct of the City or any
of that officers, officials, employees, agents or volunteers. The foregoing
notwithstanding, nothing In this agreement shall restriQ or Impair the right of
APPLICANT to seek any appropriate remedy against CITY for any denial of the LAND
USE APPROVAL, or any unlawful condition or exaction imposed In connection wit the
LAND USE APPROVAL. Furthermore, nothing in this agreement limits or restricts the
ability of the City to defend itself against any legal claims arising out of its consideration
of the LAND USE APPROVAL including the assertion of any appropriate affirmative
defenses to such claims.
3. NOTIFICATIONS AND COOPERATIDN 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. As a material condition of Applicant's obligations
hereunder, 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.
APPLICANT shall have the right to select the allomey or attorneys who will
defend the CITY. However the CITY shall have the right to approve the counsel
selected by Applicant, which approval shall not be unreasonably withheld. APPLICANT
further agrees to be fully responsible for any and all costs and attorney's fees generated
by said attomey(s) in the defense of CITY In any claim, demand, action, proceeding or
litigation arising out of the LAND USE APPROVAL.
4. 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, proceetling, 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 and at its own expense. In no event shall CITY'S participation in the
defense of any demand claim, action, proceeding, or litigation affect Me obligations
imposed upon APPLICANT in section 2 of this Agreement.
5, REIMBURSEMENT OF CITY'S OOIl Rt 8UMINI51RAlIVG
RECORD'
Without Ilmking the CITY'S rights under paragraph 2 herein above, APPLICANT
agrees to reimburse the CITY for Its actual, reasonable 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. APPLICANT shall pay such cost to CITY before
receiving such administrative record. If the applicable law requires the petitioner,
plaintiff or other party besides APPLICANT or CITY to pay the cost of certifying and/or
preparing the administrative record. APPLICANT will still be responsible for reimbursing
the CITY for any reasonable costs incurred by the City in preparing and/or caddying the
Administrative Record that the City was not legally able to recover from the Petitioner.
Plantif( or other party. To fine extent administrative record reimbursement and related
costs are recovered in any litigation by the CITY. APPLICANT shall he reimbursed to
the extent any such recovery is made as cost recovery items.
6. TERMINATION OF AGREEMENT.
(a) This Indemnficatlon 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 tris Indemnification Agreement, may reasonably
rely upon said opinion of APPLICANT's legal counsel.
(b) If this Indemnification Agreement is terminated as provided above,
the CIN shall execute a written release of APPLICANTS obligations under this
Indemnification Agreement. It shall be APPLICANTS responsibility to record such
document with the office of the Recorder of the County of Fresno.
]. ATTORNEY'S FEES:
If ether party is required to commence any proceeding or legal acfion to enforce
or intemnet any term, covenant or condition of this Agreement, the prevailing party in
such processing or action shall be entitled to recover from the other party its reasonable
attorneys fees and legal expenses.
8. SEVERABILITY'.
If any provision of this Agreement Is determined to be invalid in a final judgment
by a court of competent judsdicfion, each and every other prevision hereof shall remain
In full force and effect.
9. 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 WTNESS WHEREOF, APPLICANT and CITY hereby execute this
Agreement.
APPLICANT:
Fresno MSA Limited Partnership,
a California limited partnership
c/bla Verizon Wreless
By: Calico Partnership, Its; general partner
B_
Name rLJonea, Jr.
TM¢ Area c PreaWeM Networe
I ln9
DATED: 1211+105 CIT"Y OF FRESNO
By:
API (ing and Development
Deparhnent
ATTEST:
REBECCA E. KLISCH
CITY CLERK
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C dSHi��/ BY: csp CCnamplon
Deputyy,�K1p� sr. coon 1
vetlzon wireless
APPROVED AS TO FORM:
JAMES C. SANCHEZ
CITY ATTORNEY
By:
enier Deputy
Date: 3 r