HomeMy WebLinkAboutMartella, Robin R. (Trust) Indemnification Agreement - 1-25-24 INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into this 25th day of January 2024, by and between
the CITY OF FRESNO, a municipal corporation (City), on the one hand, and PW FUND
B, LP, SPAN DEVELOPMENT, LLC, and the ROBIN R. MARTELLA TRUST (collectively
referred to as the Owners).
RECITALS
WHEREAS, the Owners were among the entities that applied to the City for a Land
Use Approval, including but not limited to Plan Amendment Application No. P20-01665,
Rezone Application No. P20-01665 and the related Environmental Assessment No. P20-
01665 pertaining to ±92.53 acres of property bounded by East Vine Avenue to the north,
State Route 41 to the east, South Elm Avenue to the west and East Chester/East Samson
Avenue (alignment) to the south, which sought to change the zoning and the land use of
the ±92.53 acre area from Neighborhood Mixed Use to Light Industrial; and
WHEREAS, on October 13, 2022, the City Council granted the Land Use Approval
for those properties located north of E. Annadale Avenue, but directed staff to bring back
a proposed overlay district that could potentially be applied to the properties located to
the south of E. Annadale Avenue within ninety days; and
WHEREAS, because staff has not brought back a proposed overlay district to the
City Council, the City Council will consider the Land Use Approval for the properties
located to the south of E. Annadale Avenue at an unspecified date to be determined; 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, the Owners and City mutually desire to enter into this Indemnification
Agreement, by which the Owners 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 the Owners, subject to the provisions of Section 2, below.
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1. DEFINITIONS.
(a) "Owners" mean PW Fund B, LP, SPAN DEVELOPMENT, LLC, and the
ROBIN W. MARTELLA TRUST, and their heirs, assigns, or successors in interest.
(b) "Land Use Approval"shall mean the legislative and discretionary approvals
sought by the Owners and considered for issuance by the City pertaining to Owner's
property bounded by E. Annadale Avenue to the north, State Route 41 to the east, South
Elm Avenue to the west and East Chester/East Samson Avenue (alignment) to the south
and any related Environmental Assessment prepared pursuant to the California
Environmental Quality Act (CEQA). Such Land Use Approval may include, but is not
limited to, the prior Plan Amendment Application No. P20-01665, Rezone Application No.
P20-01665 and the related Environmental Assessment No. P20-01665, and/or a new
application submitted for Owner's property along with a new Environmental Assessment
prepared pursuant to CEQA that seeks to change the zoning and land use designation of
those properties to Light Industrial (IL). Land Use Approval does not include a ministerial
permit.
(c) "City" shall mean the City of Fresno, a municipal corporation.
2. HOLD HARMLESS AND INDEMNIFICATION RELATED TO LAND USE
APPROVAL.
To the furthest extent allowed by law, the Owners 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,
modifying, or approving the Land Use Approval, including, but not limited to claims
alleging violations of the California Environmental Quality Act (CEQA), State Planning
and Zoning Law, SB 330, and/or state housing laws, the Owners' 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. NOTIFICATIONS AND COOPERATION BY CITY.
City shall notify the Owners 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 the Owners. If City requests that the Owners defend City, it shall notify the
Owners 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 the Owners will suffice in lieu of separate counsel. City reserves its
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rights at all times to retain separate defense counsel subject to the provisions of this
paragraph, and the Owners agrees to accept such selection. City and the Owners shall
at all times cooperate with respect to the retention of counsel. The Owners further agree
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 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, 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 the Owners in section 2 of
this Agreement.
5. REIMBURSEMENT OF CITY'S COSTS RE: ADMINISTRATIVE RECORD.
Without limiting the City's right to recover its costs from the Owners under
paragraph 2 herein above, the Owners agree 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. The Owners and City agree to work
cooperatively with respect to preparation of the administrative record, and the Owners
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, the Owners shall be reimbursed to the
extent any such recovery is made as cost recovery items.
6. BINDING OBLIGATION.
The Owners 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 the Owners'
successor(s) in interest, heirs, transferee(s), and assign(s). Owners and the City shall
reasonably cooperate to remove this Agreement as an encumbrance upon the
Termination of this Agreement pursuant to Section 9 below; or, alternatively, within one
year after the later of (i) if no action is filed challenging the Land Use Approvals, the
approval of the Land Use Approvals; (ii) if any action if filed challenging the Land Use
Approvals, the final resolution of any such challenge; and (iii) Owners' discharge of any
remaining payment obligations hereunder.
7. COVENANT NOT TO SUE.
(a) The Owners 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.
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(b) The Owners acknowledges and agrees that this release applies to all claims
that the Owners may have against City arising out of the above-described Land Use
Approval for injuries, damages, or losses to the Owners' person and property, real or
personal, whether those injuries, damages, or losses are known or unknown, foreseen or
unforeseen, or patent or latent.
(c) The Owners certifies that the Owners have 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) The Owners hereby waive application of section 1542 of the Civil Code.
(e) The Owners understand and acknowledge that the significance and
consequence of this waiver of section 1542 of the Civil Code is that even if the Owners
should eventually suffer additional damages arising out of the above described Land Use
Approval, the Owners will not be permitted to make any claim for those damages.
Furthermore, the Owners acknowledge that they intend these consequences even as to
claims for damages that may exist as of the date of this release but which the Owners do
not know exist, and which, if known, would materially affect the Owners' decision to
execute this release, regardless of whether the Owners' lack of knowledge is the result
of ignorance, oversight, error, negligence or any other cause.
(fl The Owners warrant and represent that in executing this release, they have
relied on legal advice from the attorney of their choice that the terms of this release and
its consequences have been completely read and explained to the Owners by that
attorney, and that the Owners fully understand the terms of this release.
(g) The Owners acknowledge and warrant that their 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.
() The provisions of section 11 below shall not apply to this covenant not to
sue.
8. CONDITION PRECEDENT.
The effectiveness of this Indemnification Agreement is expressly conditioned upon
the City's approval of the Land Use Approval. In the event this condition precedent is not
satisfied, this Indemnification Agreement shall have no effect and terminate automatically
and without further action by either Party. In the event that the Land Use Approval, or
any portion thereof, is invalidated in any subsequent legal action, the City's re-approval
of the Land Use Approval is a condition precedent for continued enforceability of this
Indemnification Agreement.
9. TERMINATION OF AGREEMENT.
(a) This Indemnification Agreement may be terminated only upon the following
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conditions:
(i) The parties agree to terminate this Indemnification Agreement by
their express, mutual written consent; or
(ii) The Owners petition the Fresno City Council to terminate this
Indemnification Agreement by providing to the Council a written opinion of the
Owners' 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 the Owners' legal counsel.
(b) If this Indemnification Agreement is terminated as provided above, the City
shall execute a written release of the Owners' obligations under this Indemnification
Agreement. It shall be the Owners' responsibility to record such document with the office
of the Recorder of the County of Fresno.
10. SUBSEQUENT CONSIDERATION OF LAND USE APPROVAL.
In the event the Land Use Approval, or any portion thereof, is invalidated in any
subsequent legal action, this Indemnification Agreement will continue to apply to any
subsequent approval of the Land Use Approval by the City, unless otherwise terminated
pursuant to section 10. To the extent the Land Use Approvals are successfully challenged
based on any alleged failure to comply with the procedural and/or substantive
requirements of CEQA, State Planning and Zoning Law, SIB 330, and/or state housing
laws, the City and the Owners shall cooperate with each other to resolve any such ground
for disapproval and bring the matter back before the City Council for its consideration
within a reasonable time.
11. ATTORNEYS' 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.
12. 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.
13. CONSTRUCTION OF CONTRACT.
The parties hereby acknowledge that they and their respective counsel have
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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 Indemnification
Agreement at Fresno, California, on the day and year first above written.
CITY: OWNERS:
CITY OF FRESNO, PW FUND B, LP
A California municipal corporation A California limited partnership
rm�� r
By: PWIE GP, LLC, a California limited liability
By: company, General Partner
Georg nne A. White,City M ager By: Pac West Equities, LP, a Delaware limited
partnership, Sole Member
By: PWI Lead, LLC, a California limited liability
APPROVED AS TO FORM: company, General Partner
ANDREW JANZ
City Attorn
By:
Name: Kevin Ramos
By: Title: Investment Committee Chair
Andrew Janz, Citj Atto y
ATTEST: By:
TODD STERMER, CMC Name: Larry Allbaugh
City Clerk Title: Investment Committee Member
SPAN DEVELOPMENT, LLC
By: Z-U-1V2-`f A California limited liability company
Deputy
By:
Name: Timothy Mitchell
Title: President
By:
Name: Julia Howell
Title: Chief Financial Officer
ROBIN W. MARTELLA TRUST
By:
Name: Robin W. Martella
Its: Owner
{8286/002/01729624.DOCX}
7
DocuSign Envelope ID:COACA12D-4F97-44AC-B5D9-989OF1895746
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement at Fresno, California, on the day and year first above written.
CITY: OWNERS:
CITY OF FRESNO, PW FUND B, LP
A California municipal corporation A California limited partnership
By: PWIE GP, LLC, a California limited liability
Qy: company, General Partner
Jennifer Clark, AICP, Director By: Pac West Equities, LP, a Delaware limited
Planning and Development partnership, Sole Member
Department By: PWI Lead, LLC, a California limited liability
company, General Partner
DucuSiynod by:
APPROVED AS TO FORM: VA Mos
ANDREW JANZ By: - 1/z5/2024
City Attorney Name: Ruin amos
Title: Investment Committee Chair
0ocu5i nod by:
By:
Andrew Janz, City Attorney By: 1/28/2024
Name: arty 'augh
ATTEST: Title: Investment Committee Member
TODD STERMER, CMC
City Clerk SPAN DEVELOPMENT, LLC
A California limited liability company
Deputy By:
Name: Timothy Mitchell
Title: President
By:
Name: Julia Howell
Title: Chief Financial Officer
ROBIN W. MARTELLA TRUST
By: _
Name: Robin W. Martella
Its: Owner
{8286/002/01729624.DOCX} 7
r
IN WITNESS WHEREOF, the parties have executed this Indemnification i
Agreement at-Fresno, California, on the.day and y--ear first above written.
CITY: OWNERS:
CITY OF FRESNO, PW FUND B, LP
A California municipal corporation A California limited partnership
By: PWIE GP, LLC, a California limited liability
By: company, General Partner
Jennifer Clark, AICP, Director By: Pac West Equities, LP, a Delaware limited j
Planning and Development partnership, Sole Member
Department By: PWI Lead, LLC, a California limited liability
company, General Partner
APPROVED AS TO FORM:
ANDREW JANZ By:
City Attorney Name: Kevin Ramos
Title: Investment Committee Chair
By:
Andrew Janz, City Attorney By:
Name: Larry Alibaugh
ATTEST: Title: Investment Committee Member
TODD STERMER, CMC
City Clerk SPAN DEVELOPMENT, LLC
A California limited liability company
By: r
Deputy By:
Name:Timothy Mit hell
Title: President
By: PA-�j a
Name. ul a Howell
Title: Chief Financial Officer
ROBIN W. MARTELLA TRUST
By:
Name: Robin W. Martella
Its, Owner
{82 8 6100 2101 72 9 624.DOCX} 7
DocuSign Envelope ID:COACAI2D-4F97-44AC-65D9-989OF1895746
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement at Fresno, California, on the day and year first above written.
CITY: OWNERS:
CITY OF FRESNO, PW FUND B, LP
A California municipal corporation A California limited partnership
By: PWIE GP, LLC, a California limited liability
By: company, General Partner
Jennifer Clark, AICP, Director By: Pac West Equities, LP, a Delaware limited
Planning and Development partnership, Sole Member
Department By: PWI Lead, LLC, a California limited liability
company, General Partner
Uocuftnod by:
APPROVED AS TO FORM: ���^ ,,s 1/25/2024
ANDREW JANZ By:
City Attorney Name: evin amos
Title: Investment Committee Chair
Oocu5t ned by:
By: 1/28/2024
Andrew Janz, City Attorney By:
Name: arty augh
ATTEST: Title: Investment Committee Member
TODD STERMER, CMC
City Clerk SPAN DEVELOPMENT, LLC
A California limited liability company
By:
Deputy By:
Name: Timothy Mitchell
Title: President
By:
Name: Julia Howell
Title: Chief Financial Officer
ROBIN W. MARTELLA TRUST
r�1
By:
Name: Robin W. Martella
Its: Owner
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