HomeMy WebLinkAboutAgreement A-16-209 with Riverbend Sand and Gravel, LLC..pdf1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 1 of 6
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into this day of , 2016, by
and between the COUNTY OF FRESNO,a political subdivision of the State of
California,(hereinafter "COUNTY")and Riverbend Sand and Gravel,LLC,(hereinafter
"APPLICANT"), a limited liability company organized under the laws of the State of
California.
WITNESSETH:
WHEREAS,on or about February 26,2015,COUNTY approved
Unclassified Conditional Use Permit Application No.3390 and Reclamation Plan for
the Riverbend Sand and Gravel Project,and Associated Environmental Impact Report
No.6606 (State Clearinghouse No.2013071097);and WHEREAS,litigation
challenging the granting or issuance of land use approvals by governmental bodies is
proliferating,and such litigation exposes COUNTY 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 Board of Supervisors is an objective decision-making
body and,therefore,has 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 important public policy;and
WHEREAS,COUNTY could incur 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
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL,LLC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 2 of 6
WHEREAS,Condition of Approval No. 13 requires the APPLICANT to
enter into an agreement indemnifying COUNTY for legal costs associated with
COUNTY'S approval of Unclassified Conditional Use Permit No.3390;and
WHEREAS,APPLICANT and COUNTY mutually desire to enter into this
Indemnification Agreement,by which APPLICANT shall indemnify,(at COUNTY'S
request)defend,save and hold COUNTY harmless,in order that COUNTY shall bear
no fiscal or financial burden whatsoever resulting from any litigation challenging the
COUNTY'S grant or issuance of land use approvals to APPLICANT.
1.DEFINITIONS.
a."APPLICANT"means Riverbend Sand and Gravel,LLC and its heirs,
assigns or successors in interest;
b."Land Use Approval"shall include any benefit arising from any of the
following:the certification of an Environmental Impact Report ("EIR")No.6606 (State
Clearinghouse No.2013071097),the issuance of Unclassified Conditional Use Permit
No.3390;and the approval of Reclamation Plan prepared pursuant to the Surface
Mining and Reclamation Act ("SMARA")for the Riverbend Sand and Gravel Project.
"Land use approval"does not include a ministerial permit;
c. "COUNTY"shall mean the County of Fresno,a political subdivision of
the State of California;and,
d."Project"means the use of the land authorized by the Land Use
Approval:Unclassified Conditional Use Permit No.3390.
2.HOLD HARMLESS.
The APPLICANT hereby agrees to save,indemnify,hold hannless and,
at COUNTY'S request,defend COUNTY,its officers,agents,and employees,the
Fresno County Board of Supervisors,each member of the Fresno County Board of
Supervisors,the Fresno County Planning Commission,from and against all expenses,
demands,liabilities,claims,costs (including but not limited to court costs and
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL,LLC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 3 of 6
attorney's fees), or damages of any nature whatsoever occurring or resulting to
COUNTY,including,but not limited to, an award of attorney's fees and costs to the
person,organization or entity bringingthe cause of action, or their officers,agents,and
employees,arising from, resulting from, or in connection with any COUNTY action in
granting,issuing or approving Land Use Approvals for the Project.
When defending COUNTY, APPLICANT shall pay all attorneys'fees and
costs related to the defense in any action brought against the COUNTY and the
APPLICANT,except for any fees and costs incurred by the COUNTY in defense of
any action,as provided in section 4 of this agreement.APPLICANT shall defend
COUNTY through counsel selected by APPLICANT (including but not limited to in-
house counsel)and shall keep the COUNTY fully informed as to the progress of such
defense.COUNTY shall cooperate fullywith APPLICANT in the defense of the claim.
3.NOTIFICATIONS AND COOPERATION BY COUNTY.
COUNTY shall NOTIFY applicant within seven (7) COUNTY business days of
its receipt of any demand,claim, action,proceeding,or litigation in which COUNTY is
to be indemnified and held harmless by APPLICANT.If COUNTY requests that
APPLICANT defend COUNTY, it shall notify APPLICANT of such request in writing
within ten (10) COUNTY business days of its receipt of any such demand,claim,
action,proceeding,or litigation. COUNTYshall cooperate fully in such defense.
4.COUNTY PARTICIPATION IN DEFENSE.
Nothing contained herein shall prohibit COUNTY, 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. IfCOUNTY elects to also defend,
it shall do so in good faith and COUNTY shall bear its attorney's fees and cost.Except
as otherwise provided in this paragraph,in no event shall COUNTY'S participation in
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL,LLC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 4 of 6
the defense of any demand,claim, action,proceeding,or litigation affect the
obligations imposed upon APPLICANT in section 2 of this Agreement.
5.REIMBURSEMENT OF COUNTY'S COSTS RE:ADMINISTRATIVE
RECORD.
COUNTY acknowledges that it will make all reasonable efforts to look to
Petitioner bringing action for payment of costs associated with preparation of
administrative record as provided by law.However,only if the Petitioner refuses to pay
within 90 days,APPLICANT agrees to reimburse COUNTY for its actual cost incurred,
including,but not limited to,COUNTY staff and attorney time expended,for certifying
and/or preparing the administrative record in connection with any litigation related to
the subject matter of this Indemnification Agreement.To the extent administrative
record reimbursement and related costs are recovered by the COUNTY in any
litigation,APPLICANT shall be reimbursed to the extent of any such recovery.
6.COVENANT NOT TO SUE.
(a) Upon issuance of a building permit for the Project,APPLICANT on
behalf of itself,and its successors,and assigns,hereby fully releases COUNTY,its
successors,and all other persons and associations,known or unknown,from all
claims and causes of action,as a result of the above-described land use approval and
covenants not to sue relating to such claims.
(b)APPLICANT acknowledges and agrees that this release applies to
all claims that APPLICANT may have against COUNTY 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 acknowledges and warrants that APPLICANT'S
execution of this release is free and voluntary.
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL,LLC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 5 of 6
(d)This release pertains to a disputed claim and does not constitute
an admission of liability by COUNTY forthe above-described land use approval.
(e)The provisions of paragraph 8 herein below,shall not apply to this
covenant not to sue.
7.LEGAL AUTHORITY
Each individual executing or attesting this Agreement hereby covenants,
warrants,and represents:(1)that he or she is duly authorized to execute or attest and
deliver this Agreement on behalf of their respective organization in accordance with the
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
standing in the State of California.
8.SEVERABILITY.
If any provision of this Agreement is determined to be illegal, invalid, void, or
unenforceable in a final judgment by a court of competent jurisdiction,each and every
other provision hereof shall remain in full force and effect,unless this severability
provision would deny one or more of the parties to the Agreement of the material
benefits of the Agreement,inwhich case the entire Agreement shall have no force and
effect.
9.APPLICABLE LAW.
This Agreement is made and entered into in the State of California and shall be
deemed to have been executed and delivered within the State of California,and the
rights and obligations of the parties hereunder shall be governed by, and construed,
and enforced in accordance with the laws of the State of California.
10.CONSTRUCTION OF CONTRACT.
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.
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL,LLC
Page 6 of 6
1 IN WITNESS WHEREOF, APPLICANT and COUNTY hereby execute this
2 Agreement.
3
4
APPLICANT:
Riverbend Sand and Gravel, LLC
COUNTY OF FRESNO
7 Date: rf\<M-1 J..L\ 1 J.DILo
8
9 Date: BERNICE E. SEIDEL, Clerk
Board of Supervisors 10
11
12
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPROVED AS TO LEGAL FORM:
Attorney for APPLICANT
By ~~ e:M~6{>
Date: fD <M-4 rt:4 1 ().J)I(f)
APPROVED AS TO LEGAL FORM :
DANIEL C. CEDERBORG, COUNTY
:~u(lJ U~
REVIEWED AND RECOMMENDED
FOR APPROVAL:
BERNARD JIMENEZ _, Interim Director
Department of Public Works and
Plan ing
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND RIVERBEND SAND AND GRAVEL, LLC