HomeMy WebLinkAboutAgreement A-16-209 with Riverbend Sand and Gravel LLC..pdf Agreement No. 16-209
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1 INDEMNIFICATION AGREEMENT
2 THIS AGREEMENT is entered into this 24th day of May 2016, by
3 and between the COUNTY OF FRESNO, a political subdivision of the State of
4 California, (hereinafter "COUNTY") and Riverbend Sand and Gravel, LLC, (hereinafter
5 "APPLICANT"), a limited liability company organized under the laws of the State of
6 California.
7 WITNESSETH:
8 WHEREAS, on or about February 26, 2015, COUNTY approved
9 Unclassified Conditional Use Permit Application No. 3390 and Reclamation Plan for
10 the Riverbend Sand and Gravel Project, and Associated Environmental Impact Report
11 No. 6606 (State Clearinghouse No. 2013071097); and WHEREAS, litigation
12 challenging the granting or issuance of land use approvals by governmental bodies is
13 proliferating, and such litigation exposes COUNTY to potential liability for damages,
14 costs, and attorney's fees; and
15 WHEREAS, in such litigation, the person or entity receiving land use
16 approvals is designated as a real party in interest and is the party that primarily and
17 directly benefits from the granting or issuance of the land use approvals; and
18 WHEREAS, the Board of Supervisors is an objective decision-making
19 body and, therefore, has no special interest in the approval or denial of land use
20 applications, or the outcome of litigation arising from such grant or denial, except as to
21 those which promote important public policy; and
22 WHEREAS, COUNTY could incur great expense in the active defense of
23 such litigation and, if unsuccessful, may also be required to pay the prevailing party's
24 attorney's fees and costs; and
25 WHEREAS, fairness and sound fiscal policy require that the person or
26 entity receiving the benefits of a land use approval should also bear the burden of the
27 liability for potential injuries and the expense of such litigation; and
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC
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1 WHEREAS, Condition of Approval No. 13 requires the APPLICANT to
2 enter into an agreement indemnifying COUNTY for legal costs associated with
3 COUNTY's approval of Unclassified Conditional Use Permit No. 3390; and
4 WHEREAS, APPLICANT and COUNTY mutually desire to enter into this
5 Indemnification Agreement, by which APPLICANT shall indemnify, (at COUNTY's
6 request) defend, save and hold COUNTY harmless, in order that COUNTY shall bear
7 no fiscal or financial burden whatsoever resulting from any litigation challenging the
8 COUNTY's grant or issuance of land use approvals to APPLICANT.
9 1 . DEF!NIT!ONS.
10 a. "APPLICANT" means Riverbend Sand and Gravel, LLC and its heirs,
11 assigns or successors in interest;
12 b. "Land Use Approval" shall include any benefit arising from any of the
13 following: the certification of an Environmental Impact Report ("EIR") No. 6606 (State
14 Clearinghouse No. 2013071097), the issuance of Unclassified Conditional Use Permit
15 No. 3390; and the approval of Reclamation Plan prepared pursuant to the Surface
16 Mining and Reclamation Act ("SMARA") for the Riverbend Sand and Gravel Project.
17 "Land use approval" does not include a ministerial permit;
18 c. "COUNTY" shall mean the County of Fresno, a political subdivision of
19 the State of California; and,
20 d. "Project" means the use of the land authorized by the Land Use
21 Approval: Unclassified Conditional Use Permit No. 3390.
22 2. HOLD HARMLESS.
23 The APPLICANT hereby agrees to save, indemnify, hold harmless and,
24 at COUNTY's request, defend COUNTY, its officers, agents, and employees, the
25 Fresno County Board of Supervisors, each member of the Fresno County Board of
26 Supervisors, the Fresno County Planning Commission, from and against all expenses,
27 demands, liabilities, claims, costs (including but not limited to court costs and
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC
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1 attorney's fees), or damages of any nature whatsoever occurring or resulting to
2 COUNTY, including, but not limited to, an award of attorney's fees and costs to the
3 person, organization or entity bringing the cause of action, or their officers, agents, and
4 employees, arising from, resulting from, or in connection with any COUNTY action in
5 granting, issuing or approving Land Use Approvals for the Project.
6 When defending COUNTY, APPLICANT shall pay all attorneys' fees and
7 costs related to the defense in any action brought against the COUNTY and the
8 APPLICANT, except for any fees and costs incurred by the COUNTY in defense of
9 any action, as provided in section 4 of this agreement. APPLICANT shall defend
10 COUNTY through counsel selected by APPLICANT (including but not limited to in-
11 house counsel) and shall keep the COUNTY fully informed as to the progress of such
12 defense. COUNTY shall cooperate fully with APPLICANT in the defense of the claim.
13 3. NOTIFICATIONS AND COOPERATION BY COUNTY.
14 COUNTY shall NOTIFY applicant within seven (7) COUNTY business days of
15 its receipt of any demand, claim, action, proceeding, or litigation in which COUNTY is
16 to be indemnified and held harmless by APPLICANT. If COUNTY requests that
17 APPLICANT defend COUNTY, it shall notify APPLICANT of such request in writing
18 within ten (10) COUNTY business days of its receipt of any such demand, claim,
19 action, proceeding, or litigation. COUNTY shall cooperate fully in such defense.
20 4. COUNTY PARTICIPATION IN DEFENSE.
21 Nothing contained herein shall prohibit COUNTY, in its sole discretion, from
22 participating in the defense of any demand, claim, action, proceeding, or litigation over
23 and above representation by outside counsel, or from participating in the defense of
24 any demand, claim, action, proceeding, or litigation. If COUNTY elects to also defend,
25 it shall do so in good faith and COUNTY shall bear its attorney's fees and cost. Except
26 as otherwise provided in this paragraph, in no event shall COUNTY's participation in
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC
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1 the defense of any demand, claim, action, proceeding, or litigation affect the
2 obligations imposed upon APPLICANT in section 2 of this Agreement.
3 5. REIMBURSEMENT OF COUNTY'S COSTS RE: ADMINISTRATIVE
4 RECORD.
5 COUNTY acknowledges that it will make all reasonable efforts to look to
6 Petitioner bringing action for payment of costs associated with preparation of
7 administrative record as provided by law. However, only if the Petitioner refuses to pay
8 within 90 days, APPLICANT agrees to reimburse COUNTY for its actual cost incurred,
9 including, but not !imited to, COUNTY staff and attorney time expended, for certifying
10 and/or preparing the administrative record in connection with any litigation related to
11 the subject matter of this Indemnification Agreement. To the extent administrative
12 record reimbursement and related costs are recovered by the COUNTY in any
13 litigation, APPLICANT shall be reimbursed to the extent of any such recovery.
14 6. COVENANT NOT TO SUE.
15 (a) Upon issuance of a building permit for the Project, APPLICANT on
16 behalf of itself, and its successors, and assigns, hereby fully releases COUNTY, its
17 successors, and all other persons and associations, known or unknown, from all
18 claims and causes of action, as a result of the above-described land use approval and
19 covenants not to sue relating to such claims.
20 (b) APPLICANT acknowledges and agrees that this release applies to
21 all claims that APPLICANT may have against COUNTY arising out of the above-
22 described land use approval for injuries, damages, or losses to APPLICANT's person
23 and property, real or personal, whether those injuries, damages, or losses are known
24 or unknown, foreseen or unforeseen, or patent or latent.
25 (c) APPLICANT acknowledges and warrants that APPLICANT's
26 execution of this release is free and voluntary.
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC
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1 (d) This release pertains to a disputed claim and does not constitute
2 an admission of liability by COUNTY for the above-described land use approval.
3 (e) The provisions of paragraph 8 herein below, shall not apply to this
4 covenant not to sue.
5 7. LEGAL AUTHORITY
6 Each individual executing or attesting this Agreement hereby covenants,
7 warrants, and represents: (1) that he or she is duly authorized to execute or attest and
8 deliver this Agreement on behalf of their respective organization in accordance with the
9 articles of incorporation or charter and bylaws; (2) that this Agreement is binding upon
each agency; and (3) that each agency is duly organized and legally existing in good
10
standing in the State of California.
11 g SEVERABILITY.
12 If any provision of this Agreement is determined to be illegal, invalid, void, or
13 unenforceable in a final judgment by a court of competent jurisdiction, each and every
14 other provision hereof shall remain in full force and effect, unless this severability
15 provision would deny one or more of the parties to the Agreement of the material
16 benefits of the Agreement, in which case the entire Agreement shall have no force and
17 effect.
18 9. APPLICABLE LAW.
19 This Agreement is made and entered into in the State of California and shall be
20 deemed to have been executed and delivered within the State of California, and the
21 rights and obligations of the parties hereunder shall be governed by, and construed,
22 and enforced in accordance with the laws of the State of California.
23 10. CONSTRUCTION OF CONTRACT.
24 The parties hereby acknowledge that they and their respective counsel have
25 cooperated in the drafting and preparation of this agreement, for which reason this
26 agreement shall not be construed against any party as the drafter thereof.
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC
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1 IN WITNESS WHEREOF, APPLICANT and COUNTY hereby execute this
2 Agreement.
3 APPLICANT: COUNTY OF FRESNO
4 Riverbend Sand and Gravel, LLC
By B
Chair, Board of Supervisors
6 Print Name:
7 Title: `7 c Date: I`Y)o,�-j_ 9-b(L;
r
8
9 Date: .St/iAd BERNICE E. SEIDEL, Clerk
10 Board of Supervisors
11 APPROVED AS TO LEGAL FORM:
12
By
13
Date: fYh ail, ab!(n
14 By ,
15 Attorney for APPLICANT
16 APPROVED AS TO LEGAL FORM:
17 DANIEL C. CEDERBORG, COUNTY
COU EL
18 ("�A
19 BY
REVIEWED AND RECOMMENDED
20 FOR APPROVAL:
21
22 BERNARD JIMENEZ, Interim Director
23 Department of Public Works and
Plan ing
24
25 BY
26
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC