Loading...
HomeMy WebLinkAboutReso 1988-13732 (b) RESOLUTION NO. 13732 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND TERRA INDUSTRIES, INC. IN WHICH THE DEVELOPER OF MISSION VERDE SUBDIVISION AGREES TO INDEMNIFY THE CITY AGAINST ANY CLAIMS RESULTING FROM EROSION, SILTATION AND/OR INCREASED FLOW OF DRAINAGE ARISING OUT OF THE DEVELOPMENT OF THE SUBJECT PROPERTY, 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 TERRA INDUSTRIES, INC., a California corporation, in which the developer of Mission Verde Subdivision 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 9th day of August , 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 P~orks Attorney 4477a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF C, nULA VISTA, CALIFORNIA, this 9th day of August ~9 88 , by the following vote, to-wit: AYES: Counci]members Moore, McCandliss, Nader, Cox NAYES: Council members None ABSTAIN: Counci linetubers None ABSENT: Counci 1 members Malcolm ' 'IVl'0~II~ 1~ th~ ~ity o'T/15;hula Vista ATTEST City Clerk~ 5 ,~,FE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) 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. 13732 ,ond fhof the some hos not been omended or repeoled. DATE O City Clerk CITY OF CHULA VISI'A CC-660 INDEMNIFICATION AGREEMENT This Indemnification Agreement (the "Agreement") is dated for reference purposes as of the 9th day of August , 1988, by and between the CITY OF CHULA VISTA, a municipal corporation (the "City"), and TERRA INDUSTRIES, INC., a California corporation ("Terra"). RECITALS A. Terra is the owner of that certain real property (the "Property") located within the City consisting of approximately ten (10) acres and commonly known as the Mission Verde sub- division as more particularly described on tentative subdivision tract map No. 82-8 approved by the City Council on August 10, 1982 (the "Tentative Map"). 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 Terra 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 Terra. C. The City and Terra desire to enter into this Agreement in order to satisfy such conditions and to provide for the indemnification of the City by Terra 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. Terra hereby agrees to indemnify the City against any and all claims, damages, liabil- ities, 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 Terra; provided, however, that such indemni- fication 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) the failure to properly maintain any real property other than the Property. TERRA.IND 7/18/88 '2. Assumption of Defense. The City shall promptly notify Terra of the e~istence of any claim, demand, cause of action or other matter involving liability or potential liability to the City to which Terra's indemnification obligations under this Agreement would apply and shall give Terra a reasonable oppor- tunity [not to exceed twenty (20) days after such notice] to assume the defense of the same at its own expense and with coun- sel 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 partici- pate fully in the defense at its own expense. If Terra 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 obliga- tion, 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 Terra. If the claim is one that cannot by its nature be defended solely by Terra, the City shall make available all information and assistance that Terra may reason- ably request; provided, however, that any associated expenses shall be paid by Terra. 3. Term of Agreement. The term of this Agreement shall commence as of the date of recordation by Terra of a final sub-. division tract map of the Property prepared in accordance with the Tentative Map and shall expire upon the tenth (10th) anniver- sary 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. Governinq Law. The validity, interpretation and per- formance 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 pre- vailing 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 this Agreement shall be in writing and shall be transmitted either by 2 /~ personal hand delivery or through the facilities of the United 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 Tetra: Terra Industries, Inc. (If by Mail) P.O. Box 82417 San Diego, California 92138 (If by Delivery) Suite 238 8775 Areo Drive San Diegq, California If to the City. City of Chula Vista Director of Public Works 276 Fourth Avenue Chula Vista, California 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 i 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 Agree- ment 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 San Diego, California, as of the date first written above. TERRA: TERRA INDUSTRIES, INC., ~ a alifornia corpora ion Its EXE~]T~I ~C~ 3 STATE OF CALIFORNIA COUNTY OF S~Lr~ D,~_o SS. On JLI']V 20, 1988 before me, the undersigned, a Notary Public in and for said County and States personally appeared L.a.~rlTerlc'e R, KE'ej_S known to me to be the._Vj,.~President, and___ , known to .~e ,o he the Secret,ry of ~ NOTARY PLIBUC · CALIFORNIA __, the corporation that ~WEN M. WHITELEY executed the within instrument and known to me to be the persons who executed the within instrument on behalf of said corporation, sa,d .orpor~,,o. ~e,n, known ,o ~e ,o ~e o.e o' ,he par,n.s of My C 1990 , the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that ouch partnership executed the s~me. ~ I nty en otary CITY: THE CITY OF CHULA VISTA, a municipal corporation By: ~ :, ~ Mayor ~f ~he' City ~ity C~k' Approved as to fo~: By: