HomeMy WebLinkAboutTrilluim Pumps USA, Inc. Indemnification Agreement - 4-29-2022DocuSign Envelope ID : C0D0A5EE-1A67-4BA5-A50D-64F49336CA5C
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into on April 29 , 2022 , by and
between the CITY OF FRESNO, a municipal corporation (City), and Trilluim Pumps
USA, Inc (Applicant).
RECITALS
WHEREAS, Applicant has applied to City for a Land Use Approval for the
Subject Property, described on the attached Legal Description (Exhibit A) and with the
address of 2494 South Railroad Avenue, in accordance with Development Permit
Application No. P21-04592; 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 Planning and Development, Fresno City
Planning Commission and Fresno City Council are objective decision-making bodies,
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, 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, subject to the provisions of Section 2, below.
1. DEFINITIONS.
(a) "Applicant" means Trilluim Pumps USA, 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 Development Permit Application
No.P21-04592, any approval of conditional use or development permits, any approval
of building and demolition permits by the Historic Preservation Commission, and any
document prepared pursuant to the California Environmental Quality Act (CEQA) or
other law that is approved in conjunction with any of these entitlements and permits .
Land Use Approval does not include a ministerial permit.
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(a) "City" shall mean the City of Fresno, a municipal corporation.
(b) "Project" shall mean the use of the land authorized by the Land Use
Approval.
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, including, but not limited to claims alleging violations
of the California Environmental Quality Act. 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
indemnification, 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. INSURANCE REQUIREMENTS
(a) Throughout the life of this Agreement, Applicant shall pay for and maintain
in full force and effect all insurance as required herein with an insurance company(ies)
either (i) admitted by the California Insurance Commissioner to do business in the State
of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by City's Risk Manager or designee at any time and in its
discretion. The required policies of insurance as stated herein shall maintain limits of
liability of not less than those amounts stated therein. However, the insurance limits
available to City, its officers, officials, employees, agents, and volunteers as additional
insureds, shall be the greater of the minimum limits specified therein or the full limit of any
insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, Applicant
fail to maintain any required insurance in full force and effect, all terms under this
Agreement shall be discontinued immediately, and all payments due or that become due
to Applicant shall be withheld until notice is received by City that the required insurance
has been restored to full force and effect and that the premiums therefore have been paid
for a period satisfactory to City. Any failure to maintain the required insurance shall be
sufficient cause for City to terminate this Agreement. No action taken by City pursuant to
this section shall in any way relieve Applicant of its responsibilities under this Agreement.
The phrase "fail to maintain any required insurance" shall include, without limitation ,
notification received by City that an insurer has commenced proceedings, or has had
proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Applicant shall not be deemed to
release or diminish the liability of Applicant, including, without limitation, liability under the
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indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as a limitation upon the amount of indemnification to be provided by Applicant.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Applicant, vendors , suppliers , invitees, contractors, sub
contractors, consultants, or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01 , providing liability coverage
arising out of your business operations . The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations . The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non-owned automobiles or other licensed
vehicles (Code 1-Any Auto). If personal automobile coverage is used , the
City, its officers, officials, employees, agents, and volunteers are to be listed
as additional insureds .
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
Applicant shall procure and maintain for the duration of the agreement, insurance with
limits of liability not less than those set forth below. However, insurance limits available to
City, its officers, officials, employees, agents, and volunteers as additional insureds, shall
be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY
(i) $2,000,000 per occurrence for bodily injury and property damage;
(ii) $2,000 ,000 per occurrence for personal and advertising injury;
(iii) $4,000,000 aggregate for products and completed operations; and,
(iv) $4,000 ,000 general aggregate applying separately to the work
performed under the Agreement.
2 . COMMERCIAL AUTOMOBILE LIABILITY
$1 ,000,000 per accident for bodily injury and property damage .
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3 . Workers' Compensation Insurance as required by the State of
California with statutory limits a nd EMPLOYER'S LIABILITY with limits
of liability not less than:
(i) $1,000 ,000 each accident for bodily injury;
(ii) $1 ,000,000 disease each employee ; and ,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event Applicant purchases an Umbrella or Excess insurance policy(ies) to meet the
"Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no
less coverage than the primary insurance policy(ies). In addition, such Umbrella or
Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for
the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Applicant shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and Applicant shall also be responsible for payment of any
self-insured retentions. Any self-insured retentions must be declared on the Certificate
of Insurance , and approved by , the City's Risk Manager or designee. At the option of the
City 's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such self-insured retentions as
respects City, its officers, officials, employees, agents, and volunteers; or
(ii) Applicant shall provide a financial guarantee, satisfactory to City's Risk
Manager or designee , guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall
City be responsible for the payment of any deductibles or self-insured
retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) A// policies of insurance required herein shall be endorsed to provide that
the coverage shall not be cancelled, non-renewed , reduced in coverage or
in limits except after 30 calendar days' written notice has been given to City,
except ten days for nonpayment of premium . Applicant is also responsible
for providing written notice to the City under the same terms and conditions.
Upon issuance by the insurer, broker, or agent of a notice of cancellation,
non-renewal, or reduction in coverage or in limits, Applicant shall furnish
City with a new certificate and applicable endorsements for such policy(ies).
In the event any policy is due to expire during the work to be performed for
City, Applicant shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than 15 calendar
days prior to the expiration date of the expiring policy.
(ii) The Commercial General and Automobile Liability insurance policies shall
be written on an occurrence form.
I
(iii) The Commercial General and Automobile Liability insurance policies shall
be endorsed to name City , its officers, officials, agents, employees, and
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volunteers as an additional insured. Applicant shall establish additional
insured status for the City and for all ongoing and completed operations
under the Commercial General Liability policy by use of ISO Forms or an
executed manuscript insurance company endorsement providing additional
insured status . The Commercial General endorsements must be as broad
as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20
37.
(iv) The Commercial General and Automobile Liability insurance shall contain,
or be endorsed to contain, that the Applicants' insurance shall be primary
to and require no contribution from the City. The Commercial General policy
is required to include primary and non-contributory coverage in favor of the
City for both the ongoing and completed operations coverage. These
coverages shall contain no special limitations on the scope of protection
afforded to City , its officers, officials, employees, agents , and volunteers. If
Applicant maintains higher limits of liability than the minimums shown
above , City requires and shall be entitled to coverage for the higher limits
of liability maintained by Applicant.
(v) Should any of these policies provide that the defense costs are paid within
the Limits of Liability, thereby reducing the available limits by defense costs,
then the requirement for the Limits of Liability of these polices will be twice
the above stated limits.
(vi) For any claims related to this Agreement, Applicant's insurance coverage
shall be primary insurance with respect to the City, its officers, officials,
agents, employees, and volunteers . Any insurance or self-insurance
maintained by the_ City , its officers, officials, agents, employees, and
volunteers shall be excess of the Applicant's insurance and shall not
contribute with it.
(vii) The Workers' Compensation insurance policy shall contain, or be endorsed
to contain, a waiver of subrogation as to City , its officers, officials, agents,
employees, and volunteers.
(viii) The Commercial General and Automobile Liability insurance policies shall
contain, or be endorsed to contain, a waiver of subrogation as to City, its
officers, officials, agents , employees, and volunteers.
PROVIDING OF DOCUM E NTS -Applicant shall furnish City with all certificate(s)
and applicable endorsements effecting coverage required herein. All certificates
and applicable endorsements are to be received and approved by the City's
Risk Manager or designee prior to City's execution of the Agreement and
before work commences. All non-ISO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker. Upon request of
City , Applicant shall immediately furnish City with a complete copy of any
insurance policy required under this Agreement, including all endorsements , with
said copy certified by the underwriter to be a true and correct copy of the original
policy. This requirement shall survive expiration or termination of this Agreement.
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All sub-applicants working under the direction of Applicant shall also be required
to provide all documents noted herein.
CLAIMS -MADE POLICIES -If any coverage required is written on a claims-made
coverage form:
(i) The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by Applicant.
(ii) Insurance must be maintained and evidence of insurance must be provided
for at least five years after completion of the work or termination of the
Agreement, whichever first occurs.
(iii) If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of
the Agreement, or work commencement date, Applicant must purchase
"extended reporting" period coverage for a minimum of five years after
completion of the work or termination of the Agreement, whichever first
occurs.
(iv) A copy of the claims reporting requirements must be submitted to City for
review.
(v) These requirements shall survive expiration or termination of the
Agreement.
4. NOTIFICATIONS 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. In selecting defense counsel, City should consider the prevailing local rates for
attorneys with the requisite skills. City should further consider whether a joint defense
arrangement utilizing counsel for Applicant will suffice in lieu of separate counsel. City
reserves its rights at all times to retain separate defense counsel subject to the
provisions of this paragraph, and Applicant agrees to accept such selection. City and
Applicant shall at all times cooperate with respect to the retention of counsel. 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.
5. 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 ,
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proceeding, or litigation affect the obligations imposed upon Applicant in section 2 of this
Agreement.
6. REI MBURSEME NT OF CI TY'S COSTS RE : AD M IN ISTRA T IVE RECOR D.
Without limiting 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 any proceedings related to the
subject matter of this Indemnification Agreement. Applicant and City agree to work
cooperatively with respect to preparation of the administrative record, and Applicant shall
ensure that City is fully reimbursed for the costs of preparation before receiving such
administrative record . To the extent administrative record reimbursement and related
costs are recovered in any litigation by the City, Applicant shall be reimbursed to the
extent any such recovery is made as cost recovery items .
7. BINDING OBLIGAT ION .
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}.
8. 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, excluding gross
negligence or willful misconduct of City, as set forth in Section 2, above.
(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:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially
affected his or her settlement with the debtor.
(d) Applicant hereby waives application of section 1542 of the Civil Code.
(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
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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.
(0 The provisions of paragraph 10 herein below shall not apply to this covenant
not to sue.
9. TER MINATION OF AGREEMENT.
(a) This Indemnification Agreement may be terminated only upon the
following conditions :
0) 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 ofApplicant'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 Applicant's responsibility to record such document with the office
of the Recorder of the County of Fresno .
10. 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. For the purposes of this agreement, "attorneys' fees "
and "legal expenses" include, without limitation, paralegals' fees and expenses, attorneys ,
consultants fees and expenses, expert witness fees and expenses , and all other
expenses incurred by the prevailing party 's attorneys in the course of the representation
of the prevailing party in anticipation of and/or during the course of litigation, whether or
not otherwise recoverable as "attorneys' fees" or as "costs" under California law, and the
same may be sought and awarded in accordance with California procedure as pertaining
to an award of contractual attorneys' fees.
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11. 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.
12. CONSTRUCT ION OF CON T RACT.
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.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY:
CITY OF FRESNO,
A California municipal corporation
f-OocuSlgnMI by :
By: I 7rf-d,J.._.
\ie~~tark, AICP, Director
Planning and Development
Department
No signature of City Attorney required .
Standard Document "#DEV-S Indemnity
Agreement (09-2021 )" has been used
without modification, as certified by the
undersigned.
GocuSlgnod by :
By : .k &~JA.
· ~ rGhat rdson
Planner I
ATTEST:
Todd Stermer
Deputy City Clerk
6/8/2022By:~= d~
Mr~~l..
Attachment: Exhibit A
APPLICANT:
Trilluim Pumps USA, Inc
=nedby: •
By: -l¼.¢V:Ul/\,
e!M~~)!lFA ..
President
APPLICANT:
Trilluim Pumos USA, Inc
:Slgnod \iy:
By· ~ ~llitk
. 7~~jz~
chief Financial officer
Parties authorized to sign on behalf
of Applicant [staff: see AO 4-1]
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Exhibit A
APN: 479-072-30S
BEGINNING at the southeasterly comer of Parcel "A" as shown on that certain
"PARCEL MAP NO. 1381 ", filed in Book 11, of Parcel Maps, at Page 67, Records of
said County; said corner also being on the southwesterly line of South Railroad Avenue,
as shown on said map; thence along the southerly line of said Parcel "A", South
48°58'23" West, 5.95 feet; thence North 89°45'37" West, 237. 72 feet; thence North
48°58'32" East, 118.09 feet; thence North 39°02'07" West, 121 .51 feet; thence North
39°40128'1 West, 299.57 feet; thence North 40°12'06" West, 299.66 feet; thence
North40°36'20" West, 2S9. 75 feet; th .enceNorth40°53'0811 West, 299 .84 feet ; thence
North 41 °03' 14" West, 184.84 feet; thence South 89°39'3911 East, 64.03 feet to the
said southwesterly line of South Railroad Avenue; thence along last said line, South 41
0 01 '40" East, 1619.45 feet to the POINT OF BEGINNING.
S -' BDIVIDED LAND & POR . SEC. 14, T14S., R.20E. , M.D.B.&M. Tax Rate Area
5-208
5-556
PARCELS
(32)
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;:,?HJ
2B)S •
17.05Ac. ~ci~/~
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