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HomeMy WebLinkAboutReso 1988-13880 RESOLUTION NO. 13880 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND EASTLAKE DEVELOPMENT COMPANY REGARDING EROSION, SILTATION AND/OR INCREASED FLOW OF DRAINAGE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain Indemnification Agreement between THE CITY OF CHULA VISTA, a municipal corporation, and EASTLAKE DEVELOPMENT COMPANY, a California corporation, in which the developer of EastLake I Village and Business Center agrees to indemnify the City against any claims resulting from erosion, siltation and/or increased flow of drainage arising out of the development of subject property, dated the 8thday of December , 1988, a copy of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved.-~' BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by J n P. L or of D.'Ric~r~'Rudol~~ant orks City Attorney 4477a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF C, .A VISTA, CALIFORNIA, this 6th cloy of December . . 19 .8.8 , by the following vote, to--wit: AYES: Councilmembers Malcolm, Moore, McCandllss NAYES: Counci 1 members None ABSTAIN: Counci lmembers None ABSENT: Counc i 1 members Cox, Nader of Chula Visto ATTEST ~ City Clerk S". E OF CALIFORNIA ) COUNTY OF SAN DIEC~3 ) ss. CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chulo Visto, Colifornio, DO HEREBY CERTIFY thor the obove ond foregoing is 0 full, true ond correct copy of RESOLUTION N0. ].3880 ,ond thor the some hos not been omendedor repeoled DATED City Clerk CC-6( - INDEMNIFICATION AGREEMENT This Indemnification Agreement (the "Agreement").~ {s dated for reference purposes as the 6th day of December , 1988, by and between THE CITY OF CHULA VISTA, hereinafter called "City" and EASTLAKE DEVELOPMENT COMPANY, a California corporation, hereinafter called "Developer". RECITALS A. Developer is the owner of that certain real property (the "Property") located with the City commonly known as EastLake I Village and Business Center as more particularly described on tentative subdivision tract map No. 84-7 approved by the City Council on March 19, 1985 (the "Tentative Map") by Resolution No. 11960. B. As part Of the conditions to the approval of the final subdivision tract map prepared in accordance with the Tentative Map, the City has required Developer to agree to indemnify the City against erosion, siltation damage and damage from increased flow of drainage should the same result from the development of the Property by Developer. C. The City and Developer desire to enter into this Agreement in order to satisfy such conditions and to provide for the indemnification of the City by Developer as more particularly described herein. NOW, THEREFORE, in consideration of the above recitals and of other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: 1. Indemnification of the City. Developer hereby agrees to indemnify the City against any and all claims, damages, liabilities, costs and/or expenses resulting from erosion, siltation and/or the increased flow of drainage which erosion, siltation and/or increased flow of drainage arise(s) out of the development of the Property by Developer; provided, however, that such indemnification obligation shall not apply to any such claims, damages, liabilities, costs and/or expenses resulting from (i) any act or omission to act by the City constituting gross negligence or willful misconduct or (ii) any negligent acts of the City occurring after the completion and acceptance of any public facilities constructed as part of development of the Property, or (iii) the failure to properly maintain any real property other than the Property. 2. Assumption of Defense. The City shall promptly notify Developer Of the existence of any claim, demand, cause of action or other matter involving liability or potential liability to the City to which Developer's indemnification obligations -1- under this Agreement would apply and shall give Developer a reasonable opportunity not to exceed twenty (20) days after such notice to assume the defense of the same at its own expense and with counsel of its own selection (subject to approval by the City, which approval shall not be unreasonably withheld); provided, however, that the City shall at all times also have the right to participate fully in the defense at its own expense. If Developer shall, within a reasonable time after such notice but not later than twenty (20) days after such notice, fail to assume or continue such defense, the City shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business judgment), the claim, demand, cause of action or other matter on behalf, for the account and at the risk and expense of Developer. If the claim is one that cannot be its nature be defended solely by Developer, the City shall make available all information and assistance that Developer may reasonably request; provided, however, that any associated expenses shall be paid by Developer. 3. Term of Agreement. The term of this Agreement shall commence as of the date of recordation by Developer of a final subdivision tract map of the Property prepared in accordance with the Tentative Map and shall expire upon the tenth (10th) anniversary of the date of commencement of the term of this Agreement. 4. Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective legal representatives, successors and assigns. 5. Governing Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of California. The parties hereto hereby consent to the jurisdiction of the California courts in the event any dispute arises in conjunction herewith. 6. Attorneys Fees. Should any dispute arise between the parties hereto or their legal representatives, successors and assigns concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party prevailing in such dispute shall be entitled, in addition to such other relief that may be granted, to a reasonable sum as and for their or his or its attorneys fees and legal costs in connection with such dispute. 7. Amendment. This Agreement may only be amended by the written consent of all of the parties to this Agreement at the time of such amendment. 8. Notices. All notices required to be given under the Agreement shall be in writing and shall be transmitted either by personal hand delivery or through the facilities of the United -2- States Post Office, postage prepaid, certified or registered mail, return receipt requested. Any such notice shall be effective upon delivery, if hand delivered, and forty-eight (48) hours after dispatch, if mailed in accordance with the above. Notices to the respective parties shall be sent to the following addresses unless written notice of a change of address has been given pursuant hereto: If to Developer: EastLake Development Company EastLake Business Center 900 Lane Avenue, Suite 100 Chula Vista, Ca. 92013 If to Cit~: City of Chula Vista Director of Public Works 276 Fourth Avenue Chula Vista, Ca. 92010 9. Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes any prior or concurrent written or oral agreement between said parties concerning the subject matter contained herein. There are no representations, agreements, arrangements or understandings, oral or written, between or among the parties hereto relating to the subject matter contained in this Agreement which have not been fully expressed herein. 10. Further Assurances. Each of the parties hereto hereby agrees to execute such further documents or instruments as may be necessary or appropriate to carry out the intention of this Agreement. 11. Negotiated Transaction. The provisions of this Agreement have been negotiated by all of the parties hereto and said Agreements shall be deemed to have been drafted by all such parties. Executed in Chula Vista, California, as of the date first written above. THE CITY OF CHULA VISTA DEVELOPER: EASTLAKE DEVELOPMENT CO. ATT~ ~ City ~le~ Approved as to form by (Attach Notary Acknowledgment) -3-