HomeMy WebLinkAboutAgreement A-17-205 with GASNA 6P LLC.pdf 17-0407 Agreement No. 17-205
1 INDEMNIFICATION AGREEMENT
2 THIS AGREEMENT is entered into this 16th day of May
3 2017, by and between the COUNTY OF FRESNO, a political subdivision of the State of
4 California, (hereinafter "COUNTY") and GASNA 6P, LLC, (hereinafter "APPLICANT") a limited
5 liability company organized and existing under the laws of Delaware. The COUNTY and the
6 APPLICANT are each a "Party" to this Agreement and collectively are "Parties" to this
7 Agreement.
8 WITNESSETH:
9 WHEREAS, APPLICANT has applied to COUNTY for one or more land use
10 approvals; and
11 WHEREAS, litigation challenging the granting or issuance of land use
12 approvals by governmental bodies is proliferating, and such litigation exposes COUNTY to
13 potential liability for damages, costs, and attorney's fees; and
14 WHEREAS, in such litigation, the person or entity receiving land use approvals
15 is designated as a real party in interest and is the party that primarily and directly benefits from
16 the granting or issuance of the land use approvals; and
17 WHEREAS, the Board of Supervisors is an objective decision-making body
18 and, therefore, has no special interest in the approval or denial of land use applications, or the
19 outcome of litigation arising from such grant or denial, except as to those which promote
20 important public policy; and
21 WHEREAS, COUNTY could incur great expense in the active defense of such
22 litigation and, if unsuccessful, may also be required to pay the prevailing party's attorney's fees
23 and costs; and
24 WHEREAS, fairness and sound fiscal policy require that the person or entity
25 receiving the benefits of a land use approval should also bear the burden of the liability for
26 potential injuries and the expense of such litigation; and
27 WHEREAS, APPLICANT and COUNTY mutually desire to enter into this
28 Indemnification Agreement, by which APPLICANT shall indemnify, (at COUNTY's request)
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1 defend, save and hold COUNTY harmless, in order that COUNTY shall bear no fiscal or
2 financial burden whatsoever resulting from any litigation challenging the COUNTY's grant or
3 issuance of land use approvals to APPLICANT.
4 1. DEFINITIONS
5 For purposes of this Agreement the following terms have the following
6 meanings, provided that, as the context may require, the singular of any term may be read as
7 the plural and the plural as the singular.
8 a. "APPLICANT" means the person or entity to whom the land use approval
9 will be granted or issued, and his, her, or its heirs, assigns or successors in interest.
10 b. "Land Use Approval" shall include any benefit arising from any of the
11 following: the certification of an Environmental Impact Report ("EIR"), the grant of an
12 amendment to the general plan or a rezoning; the issuance of a variance, conditional use
13 permit, 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 pursuant to the
15 Surface Mining and Reclamation Act ("SMARA"), the California Environmental Quality Act
16 ("CEQA") or other law that is approved in conjunction with the land use approval. "Land use
17 approval" does not include a ministerial permit.
18 c. "COUNTY" shall mean the County of Fresno, a political subdivision of the
19 State of California.
20 d. "Project" means the use of the land authorized by the Land Use Approval:
21 Unclassified Conditional Use Permit No. 3531.
22 2. HOLD HARMLESS
23 The APPLICANT hereby agrees to save, indemnify, hold harmless and, at
24 COUNTY's request, defend COUNTY, its officers, agents, and employees, the Fresno County
25 Board of Supervisors, each member of the Fresno County Board of Supervisors, the Fresno
26 County Planning Commission, from and against all expenses, demands, liabilities, claims,
27 costs (including but not limited to court costs and attorney's fees), or damages of any nature
28 whatsoever occurring or resulting to COUNTY, including, but not limited to, an award of
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1 attorney's fees and costs to the person, organization or entity bringing the cause of action, or
2 their officers, agents, and employees, arising, from resulting from, or in connection with any
3 COUNTY action in granting, issuing or approving Land Use Approvals for the Project.
4 When defending COUNTY, APPLICANT shall pay all fees and costs related to
5 the defense in any action brought against the COUNTY and the APPLICANT, except for any
6 fees and costs incurred by the COUNTY in defense of any action, as provided in section 4 of
7 this agreement. APPLICANT shall defend COUNTY through counsel selected by APPLICANT
8 (including but not limited to in-house counsel) and shall keep the COUNTY fully informed as to
9 the progress of such defense. COUNTY shall cooperate fully with APPLICANT in the defense
10 of the claim.
11 3. NOTIFICATIONS AND COOPERATION BY COUNTY
12 COUNTY shall NOTIFY applicant within seven (7) COUNTY business days of its
13 receipt of any demand, claim, action, proceeding, or litigation in which COUNTY is to be
14 indemnified and held harmless by APPLICANT. If COUNTY requests that APPLICANT defend
15 COUNTY, it shall notify APPLICANT in writing within ten (10) COUNTY business days of its
16 receipt of any such demand, claim, action, proceeding, or litigation. COUNTY shall cooperate
17 fully in such defense.
18 4. COUNTY PARTICIPATION IN DEFENSE
19 Nothing contained herein shall prohibit COUNTY, in its sole discretion, from
20 participating in the defense of any demand, claim, action, proceeding, or litigation over and
21 above representation by outside counsel, or from participating in the defense of any demand,
22 claim, action, proceeding, or litigation. If COUNTY elects to also defend, it shall do so in good
23 faith and COUNTY shall bear its attorney's fees and cost. Except as otherwise provided in this
24 paragraph, in no event shall COUNTY's participation in the defense of any demand, claim,
25 action, proceeding, or litigation affect the obligations imposed upon APPLICANT in section 2 of
26 this Agreement.
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1 5. REIMBURSEMENT OF COUNTY'S COSTS RE: ADMINISTRATIVE RECORD
2 COUNTY acknowledges that it will make all reasonable efforts to look to Petitioner
3 bringing action for payment of costs associated with preparation of administrative record as
4 provided by law. However, only if the Petitioner refuses to pay within 90 days, APPLICANT
5 agrees to reimburse COUNTY for its actual cost incurred, including, but not limited to,
6 COUNTY staff and attorney time expended, for certifying and/or preparing the administrative
7 record in connection with any litigation/ proceedings related to the subject matter of this
8 Indemnification Agreement. To the extent administrative record reimbursement and related
9 costs are recovered by the COUNTY in any litigation, APPLICANT shall be reimbursed to the
10 extent of any such recovery.
11 6. BINDING OBLIGATION
12 This Agreement shall be binding upon, and inure to the benefit of, the
13 successors and assigns of the Parties.
14 7. 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 claims and
18 causes of action, as a result of the above-described land use approval and covenants not to
19 sue relating to such claims.
20 (b) APPLICANT acknowledges and agrees that this release applies to all
21 claims that APPLICANT may have against COUNTY arising out of the above-described land
22 use approval for injuries, damages, or losses to APPLICANT's person and property, real or
23 personal, whether those injuries, damages, or losses are known or unknown, foreseen or
24 unforeseen, or patent or latent.
25 (c) APPLICANT acknowledges and warrants that APPLICANT's execution
26 of this release is free and voluntary.
27 (d) This release pertains to a disputed claim and does not constitute an
28 admission of liability by COUNTY for the above-described land use approval.
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1 (e) The provisions of paragraph 8 herein below, shall not apply to this
2 covenant not to sue.
3 8. SEVERABILITY
4 In the event any provisions of this Agreement are held by a court of competent
5 jurisdiction to be invalid, void, or unenforceable, the Parties will use their best efforts to meet
6 and confer to determine how to mutually amend such provisions with valid and enforceable
7 provisions, and the remaining provisions of this Agreement will nevertheless continue in full
8 force and effect without being impaired or invalidated in any way.
9 9. NON-ASSIGNMENT
10 Neither Party shall assign, transfer or sub-contract this Agreement nor their rights
11 or duties under this Agreement without the prior written consent of the other party.
12 10. NOTICES
13 Except as otherwise specified herein, all notices, demands, requests or
14 approvals to be sent pursuant to this Agreement shall be made in writing, and sent to the
Parties at their respective addresses specified below or to such other address as a Party may
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designate by written notice delivered to the other Party in accordance with this Section. All
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such notices shall be sent by: (a) personal delivery, in which case notice is effective upon
17 delivery; (b) certified or registered mail, return receipt requested, in which case notice shall be
18 deemed delivered upon receipt if delivery is confirmed by a return receipt; or (c) nationally
19 recognized overnight courier, with charges prepaid or charged to the sender's account, in
20 which case notice is effective on delivery if delivery is confirmed by the delivery service. For
21 all claims arising out of or related to this Agreement, nothing in this section establishes,
22 waives, or modifies any claims presentation requirements or procedures provided by law,
23 including but not limited to the Government Claims Act (Division 3.6 of Tlitle 1 of the
Government Code, beginning with section 810).
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25 County: County of Fresno
Director of Public Works and Planning
26 2220 Tulare Street, Sixth Floor
Fresno, CA 93721
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Copies of notices to COUNTY shall also be given to:
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1 Fresno County Counsel
Attention: Arthur G. Wille, Senior Deputy County Counsel
2 2220 Tulare Street, Suite 500
Fresno, CA 93721
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Applicant: GASNA 6P, LLC
4 50 California Street, Suite 820
San Francisco, CA 94111
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6 11. RELATIONSHIP OF PARTIES
7 Neither Developer nor any of its members, officers, agents, employees, contractors or
8 their subcontractors, or consultants or their subconsultants shall be deemed to, be agents of
County in connection with the performance of Developer's obligations under this Agreement.
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12. INTEGRATED AGREEMENT: AMENDMENTS IN WRITING
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This Agreement represents the full and complete understanding of the: Parties with
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respect to the subject matter hereof, and all preliminary negotiations and oral or written
12 agreements with respect thereto are merged herein. No verbal agreement or implied covenant
13 shall be held to vary the provisions hereof. Any modification of this Agreement will be effective
14 only by a written instrument signed by both County and Developer. No waiver of any provision
15 of this Agreement will be valid unless and until it is in writing and signed by the Party making
16 the waiver. Waiver by either Party at any time of a breach or default of this Agreement shall
17 not be deemed a waiver of or consent to a breach or default of the same or any ether provision
18 of this Agreement.
13. HEADINGS: CONSTRUCTION; STATUTORY REFERENCES
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The headings of the sections and paragraphs of this Agreement are for convenience
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only and shall not be used to interpret this Agreement. This Agreement is the product of
21 negotiation between the Parties. The language of this Agreement shall be construed as a
22 whole according to its fair meaning and not strictly for or against any Party. Any rule of
23 construction to the effect that ambiguities are to be resolved against the drafting party shall not
24 apply in interpreting this Agreement. All references in this Agreement to particular statutes,
25 regulations, ordinances or resolutions of the United States, the State of California, or the
26 County of Fresno shall be deemed to include the same statute, regulation, ordinance or
27 resolution as hereafter amended or renumbered, or if repealed, to such other provisions as
may thereafter govern the same subject.
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1 14. AUTHORITY
2 Each Party represents and warrants to the other Party that such Party is duly
3 authorized and empowered to execute, enter into, and perform its obligations set forth in this
4 Agreement, and that the individual signing this Agreement on behalf of such Party has been
duly authorized to execute this Agreement on behalf of such Party, and will, by signing this
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Agreement on such Parry's behalf, legally bind such Party to the terms and conditions of this
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Agreement.
7 Each Party further represents and warrants to the other Party that no other person or
8 entity is required to give its approval or consent to this Agreement in order for such Party to
9 authorize, enter into, and perform its obligations under this Agreement, or that if such approval
10 or consent to this Agreement is required, that such approval or consent has been obtained.
11 15. APPLICABLE LAW
12 This Agreement is made and entered into in the State of California and shall be
13 deemed to have been executed and delivered within the State of California, and the rights and
14 obligations of the Parties hereunder shall be governed by, and construed, and enforced in
15 accordance with the laws of the State of California. The Agreement and obligations of the
16 Parties are subject to all laws, orders, rules, and regulations of the authorities having
17 jurisdiction over this Agreement (or the successors of those authorities). Venue for any action
18 arising out of or related to this Agreement shall only be in Fresno County, California.
19 16. CONSTRUCTION OF AGREEMENT
20 The Parties hereby acknowledge that they and their respective counsel have
21 cooperated in the drafting and preparation of this agreement, for which reason this agreement
22 shall not be construed against any party as the drafter thereof.
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1 IN WITNESS WHEREOF, APPLICANT and COUNTY hereby execute this Agreement.
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3 APPLICANT: COUNTY OF FRESNO
GASNA 6P
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By By
5 fi.�u-thorbgd Signatory Brian Pacheco, Chairman
Board of Supervisors
6 Print Name: ( I
7 Title: ?���lz Date:
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Date: Bernice E. Seidel, Clerk
9 Board of Supervisors
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APPROVED AS TO LEGAL FORM By
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Date:
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orne f r Applica
13 Lcx-FaSvick
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REVIEWED AND RECO ENDED APPROVED AS TO LEGAL FORM
15 FOR APPROVAL Daniel 7L)A--
,, Count Counsel
16 By: By: ���
17 Steven E. White, Dir for Deputy
Department of Public Works and Planning
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