HomeMy WebLinkAboutAgreement A-16-525 with Whitney Point Solar LLC.pdf Agreement No. 16-525
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1 INDEMNIFICATION AGREEMENT
August
2 THIS AGREEMENT is entered into this 23rd day of t"ay, 2016, by and
3 between the COUNTY OF FRESNO, a political subdivision of the State of California,
4 (hereinafter "COUNTY") and Whitney Point Solar, LLC, (hereinafter "APPLICANT"), a
5 limited liability company organized under the laws of the State of Delaware.
6 WITNESS ETH:
7 WHEREAS, APPLICANT applied to COUNTY for one or more land use
8 approvals; and
9 WHEREAS, litigation challenging the granting or issuance of land use
10 approvals by governmental bodies is proliferating, and such litigation exposes
11 COUNTY to potential liability for damages, costs, and attorney's fees; and
12 WHEREAS, in such litigation, the person or entity receiving land use
13 approvals is designated as a real party in interest and is the party that primarily and
14 directly benefits from the granting or issuance of the land use approvals; and
15 WHEREAS, the Board of Supervisors is an objective decision-making
16 body and, therefore, has no special interest in the approval or denial of land use
17 applications, or the outcome of litigation arising from such grant or denial, except as to
18 those which promote important public policy; and
19 WHEREAS, COUNTY could incur great expense in the active defense of
20 such litigation and, if unsuccessful, may also be required to pay the prevailing party's
21 attorney's fees and costs; and
22 WHEREAS, fairness and sound fiscal policy require that the person or
23 entity receiving the benefits of a land use approval should also bear the burden of the
24 liability for potential injuries and the expense of such litigation; and
25 WHEREAS, APPLICANT and COUNTY mutually desire to enter into this
26 Indemnification Agreement, by which APPLICANT shall indemnify, (at COUNTY's
27 request) defend, save and hold COUNTY harmless, in order that COUNTY shall bear
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC
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1 no fiscal or financial burden whatsoever resulting from any litigation challenging the
2 COUNTY's grant or issuance of land use approvals to APPLICANT relating to or
3 affecting the PROJECT.
4 1. DEFINITIONS.
5 a. "APPLICANT" means the person or entity to whom the land use
6 approval will be granted or issued, and his, her, or its heirs, assigns or successors in
7 interest;
8 b. "Land Use Approval" shall include any benefit arising from any of the
9 following: the certification of an Environmental Impact Report ("EIR"), adoption of a
10 negative declaration or mitigated negative declaration, the grant of an amendment to
11 the general plan or a rezoning; the issuance of a variance, conditional use permit,
12 including the extension of the time in which the condition use permit may be exercised,
13 Director's Review and Approval, or other discretionary land use permit; the approval of
14 a parcel, tentative or final subdivision map; and any other document prepared
15 pursuant to the Surface Mining and Reclamation Act ("SMARA"), the California
16 Environmental Quality Act ("CEQA") or other law that is approved in conjunction with
17 the land use approval. "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 uses of the land authorized by the following Land
21 Use Approvals: (1) Time extension to exercise Unclassified Conditional Use Permit
S S
22 Application No. 329N and the Mitigated Negative Declaration based on Initial Study
23 No. 6277; and (2) Unclassified Conditional Use Permit Application No. 3518 and the
24 Mitigated Negative Declaration based on Initial Study No. 7053.
25 2. HOLD HARMLESS.
26 The APPLICANT hereby agrees to save, indemnify, hold harmless and,
27 at COUNTY's request, defend COUNTY, its officers, agents, and employees, the
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC
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1 Fresno County Board of Supervisors, each member of the Fresno County Board of
2 Supervisors, the Fresno County Planning Commission, from and against all expenses,
3 demands, liabilities, claims, costs (including but not limited to court costs and
4 attorney's fees), or damages of any nature whatsoever occurring or resulting to
5 COUNTY, including, but not limited to, an award of attorney's fees and costs to the
6 person, organization or entity bringing the cause of action, or their officers, agents, and
7 employees, arising, from resulting from, or in connection with any COUNTY action in
8 granting, issuing or approving Land Use Approvals for the Project.
9 When defending COUNTY, APPLICANT shall pay all attorneys' fees and
10 costs related to the defense in any action brought against the COUNTY and the
11 APPLICANT, except for any fees and costs incurred by the COUNTY in defense of
12 any action, as provided in section 4 of this agreement. APPLICANT shall defend
13 COUNTY through counsel selected by APPLICANT (including but not limited to in-
14 house counsel) and shall keep the COUNTY fully informed as to the progress of such
15 defense. COUNTY shall cooperate fully with APPLICANT in the defense of the claim.
16 3. NOTIFICATIONS AND COOPERATION BY COUNTY.
17 COUNTY shall NOTIFY applicant within seven (7) COUNTY business days of
18 its receipt of any demand, claim, action, proceeding, or litigation in which COUNTY is
19 to be indemnified and held harmless by APPLICANT. If COUNTY requests that
20 APPLICANT defend COUNTY, it shall notify APPLICANT in writing within ten (10)
21 COUNTY business days of its receipt of any such demand, claim, action, proceeding,
22 or litigation. COUNTY shall cooperate fully in such defense.
23 4. COUNTY PARTICIPATION IN DEFENSE.
24 Nothing contained herein shall prohibit COUNTY, in its sole discretion, from
25 participating in the defense of any demand, claim, action, proceeding, or litigation over
26 and above representation by outside counsel, or from participating in the defense of
27 any demand, claim, action, proceeding, or litigation. If COUNTY elects to also defend,
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC
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1 it shall do so in good faith and COUNTY shall bear its attorney's fees and cost. Except
2 as otherwise provided in this paragraph, in no event shall COUNTY's participation in
3 the defense of any demand, claim, action, proceeding, or litigation affect the
4 obligations imposed upon APPLICANT in section 2 of this Agreement.
5 5. REIMBURSEMENT OF COUNTY'S COSTS RE: ADMINISTRATIVE
6 RECORD.
7 If the COUNTY prepares the administrative record for any litigation challenging
8 a Land Use Approval for the Project, COUNTY acknowledges that it will make all
9 reasonable efforts to look to Petitioner bringing action for payment of costs associated
10 with preparation of administrative record as provided by law. However, only if the
11 Petitioner refuses to pay within 90 days, APPLICANT agrees to reimburse COUNTY
12 for its actual cost incurred, including, but not limited to, COUNTY staff and attorney
13 time expended, for certifying and/or preparing the administrative record in connection
14 with any litigation/ proceedings related to the subject matter of this Indemnification
15 Agreement. To the extent administrative record reimbursement and related costs are
16 recovered by the COUNTY in any litigation, APPLICANT shall be reimbursed to the
17 extent of any such recovery.
18 If the Petitioner or Plaintiff challenging a Land Use Approval for the Project is
19 permitted by law to prepare the administrative record, and elects to do so, and is later
20 determined to be the prevailing party in litigation against the COUNTY, APPLICANT
21 shall pay the bear the Petitioner's or Plaintiffs cost of preparing the administrative
22 record, as determined by the court with jurisdiction over the litigation, in addition to any
23 other expenses, demands, liabilities, claims, costs (including but not limited to court
24 costs and attorney's fees), or damages, pursuant to Section 2 of this Agreement.
25 6. COVENANT NOT TO SUE.
26 (a) Upon issuance of a building permit for the Project, APPLICANT on
27 behalf of itself, and its successors, and assigns, hereby fully releases COUNTY, its
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC
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1 successors, and all other persons and associations, known or unknown, from all
2 claims and causes of action, as a result of the above-described land use approval and
3 covenants not to sue relating to such claims.
4 (b) APPLICANT acknowledges and agrees that this release applies to
5 all claims that APPLICANT may have against COUNTY arising out of the above-
6 described land use approval for injuries, damages, or losses to APPLICANT's person
7 and property, real or personal, whether those injuries, damages, or losses are known
8 or unknown, foreseen or unforeseen, or patent or latent.
9 (c) APPLICANT acknowledges and warrants that APPLICANT's
10 execution of this release is free and voluntary.
11 (d) This release pertains to a disputed claim and does not constitute
12 an admission of liability by COUNTY for the above-described land use approval.
13 (e) The provisions of paragraph 7 herein below, shall not apply to this
14 covenant not to sue.
15 7. SEVERABILITY.
16 If any provision of this Agreement is determined to be illegal, invalid, void, or
17 unenforceable in a final judgment by a court of competent jurisdiction, each and every
18 other provision hereof shall remain in full force and effect, unless this severability
19 provision would deny one or more of the parties to the Agreement of the material
20 benefits of the Agreement, in which case the entire Agreement shall have no force and
21 effect.
22 8. APPLICABLE LAW.
23 This Agreement is made and entered into in the State of California and shall be
24 deemed to have been executed and delivered within the State of California, and the
25 rights and obligations of the parties hereunder shall be governed by, and construed,
26 and enforced in accordance with the laws of the State of California.
27 ///
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INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC
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1 9. CONSTRUCTION OF CONTRACT.
2 The parties hereby acknowledge that they and their respective counsel have
3 cooperated in the drafting and preparation of this agreement, for which reason this
4 agreement shall not be construed against any party as the drafter thereof.
5 IN WITNESS WHEREOF, APPLICANT and COUNTY hereby execute this
6 Agreement.
7 APPLICANT: COUNTY OF FRESNO
8 Whitney Point Solar, LLC
9
10 BY BY
ERNEST BUDDY ME ES, Chair,
11 Board of Supervisors
12
Date: 2A -\l o
13 APPROVED AS TO LEGAL FORM:
14 BERNICE E. SEIDEL, Clerk
15 Board of Supervisors
16 BY 'r
Attorn y for Apoe1fift
17
By
18
19 Date:
20 APPROVED AS TO LEGAL FORM:
21 DANIEL C. CEDERBORG, COUNTY
COUNSEL
22 1 l
_ W
23 BY
24
REVIEWED AND RECOMMENDED
25 FOR APPROVAL:
26 Steven E. White, PE, L4 Director
Department of P c Works and
27 Planning
28 BY
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC