HomeMy WebLinkAboutAgreement A-16-525 with Whitney Point Solar, LLC.pdf1
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INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into this day of May,2016,by and
between the COUNTY OF FRESNO,a political subdivision of the State of California,
(hereinafter "COUNTY")and Whitney Point Solar,LLC,(hereinafter "APPLICANT"), a
limited liability company organized under the laws of the State of Delaware.
WITNESSETH:
WHEREAS,APPLICANT applied to COUNTY for one or more land use
approvals;and
WHEREAS,litigation challenging the granting or issuance of land use
approvals by governmental bodies is proliferating,and such litigation exposes
COUNTY to potential liabilityfor 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
liabilityfor potential injuries and the expense of such litigation;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
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR,LLC
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no fiscal or financial burden whatsoever resulting from any litigation challenging the
COUNTY'S grant or issuance of land use approvals to APPLICANT relating to or
affecting the PROJECT.
1.DEFINITIONS.
a. "APPLICANT"means the person or entity to whom the land use
approval will be granted or issued,and his, her, or 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"),adoption of a
negative declaration or mitigated negative declaration,the grant of an amendment to
the general plan or a rezoning;the issuance of a variance,conditional use permit,
including the extension of the time in which the condition use permit may be exercised.
Director's Review and Approval, or other discretionary land use permit;the approval of
a parcel,tentative or final subdivision map;and any other document prepared
pursuant to the Surface Mining and Reclamation Act ("SMARA"),the California
Environmental Quality Act ("CEQA")or other law that is approved in conjunction with
the land use approval."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 uses of the land authorized by the following Land
Use Approvals:(1)Time extension to exercise Unclassified Conditional Use Permit
Application No.3291^and the Mitigated Negative Declaration based on Initial Study
No.6277;and (2)Unclassified Conditional Use Permit Application No.3518 and the
Mitigated Negative Declaration based on Initial Study No.7053.
2.HOLD HARMLESS.
The APPLICANT hereby agrees to save,indemnify,hold harmless and,
at COUNTY'S request,defend COUNTY,its officers,agents,and employees,the
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR,LLC
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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
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 bringing the 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 in writing within ten (10)
COUNTY business days of its receipt of any such demand,claim,action,proceeding,
or litigation.COUNTY shall 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. If COUNTY elects to also defend,
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR,LLC
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it shall do so in good faith and COUNTY shall bear its attorney's fees and cost.Except
as othenwise provided in this paragraph,in no event shall COUNTY'S participation in
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.
If the COUNTY prepares the administrative record for any litigation challenging
a Land Use Approval for the Project,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/proceedings 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.
If the Petitioner or Plaintiff challenging a Land Use Approval for the Project is
permitted by law to prepare the administrative record,and elects to do so,and is later
detennined to be the prevailing party in litigation against the COUNTY, APPLICANT
shall pay the bear the Petitioner's or Plaintiffs cost of preparing the administrative
record,as determined by the court with jurisdiction over the litigation, in addition to any
other expenses,demands,liabilities,claims,costs (including but not limited to court
costs and attorney's fees),or damages,pursuant to Section 2 of this Agreement.
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
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR,LLC
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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.
(d)This release pertains to a disputed claim and does not constitute
an admission of liabilityby COUNTY for the above-described land use approval.
(e)The provisions of paragraph 7 herein below,shall not apply to this
covenant not to sue.
7.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,in which case the entire Agreement shall have no force and
effect.
8.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.
///
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 iri 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.
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APPLICANT:
Whitney Point Solar, LLC
13 APPROVED AS TO LEGAL FORM :
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COUNTY OF FRESNO
By E; y-~
ERNESTBUDDYMEEs, Chair,
Board of Supervisors
Date: ~-¢-L\-\l R
BERNICE E. SEIDEL, Clerk
Board of Supervisors
Date : -~2?-~..u.:.d::....J.:\_-....:...:\ lo=---
APPROVED AS TO LEGAL FORM :
DANIEL C. CEDERBORG, COUNTY
COUNSEL
By CtJj w iJ!_
REVIEWED AND RECOMMENDED
FOR APPROVAL:
Steven E. White, PE, L Director
Department of P ·c Works and
Planning
By ____ -4~~-==---~-
INDEMNIFICATION AGREEMENT
BETWEEN COUNTY OF FRESNO AND WHITNEY POINT SOLAR, LLC