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HomeMy WebLinkAboutCC Resolution 9378 (Land Use Litigation)Resolution No. 9378 RESOLUTION OF THE SAN RAFAEL CITY COUNCIL REQUIRING APPLICANT'S FOR LAND USE APPROVALS TO INDEMNIFY CITY FOR ATTORNEYS' EXPENSES AND COSTS IN DEFENDING LITIGATION RELATED TO SUCH APPROVALS, AND TO REIMBURSE CITY FOR ATTORNEYS' EXPENSES AND COSTS IN REVIEWING, PROCESSING, AND IMPLEMENTING SUCH LAND USE APPROVALS AND RELATED CONDITIONS OF SUCH APPROVALS. WHEREAS, the City incurs substantial attorney's expenses and costs, including City Attorney staff time, in defending litigation related to Planning Department land use approvals, and in reviewing, processing and implementing such land use approvals and related conditions of such approvals; and WHEREAS, the City presently does not recover any of these City Attorneys' expenses and costs from the applicants for such land use approvals, although such applicants are the primary beneficiaries of such approvals; and WHEREAS, it is fair and reasonable for the applicants for such land use approvals to be financially responsible for such City Attorneys' expenses and costs. NOW THEREFORE, BE IT RESOLVED that the City Council hereby approves the implementation by staff of a cost recovery program for City Attorneys' expenses and costs related to land use approvals, and directs that the following language be added to the City's current applications for land use approvals, or incorporated into a separate agreement that shall be a condition of such approvals: INDEMNIFICATION: As a condition of this application, applicant agrees to defend, indemnify, release and hold harmless the City, its agents, officers, attorneys, employees, boards and commissions from any claim, action or proceeding brought against any of the foregoing individuals or entities ("indemnitees"), the purpose of which is to attack, set aside, void or annul the approval of this application or the adoption of any environmental document which accompanies it. This indemnification shall include, but not be limited to, damages, costs, expenses, attorney fees or expert witness fees that may be asserted or incurred by any person or entity, including the applicant, third parties and or the indemnitees, arising out of or in connection with the approval of this application, whether or not there is concurrent, passive or active negligence on the part of the indemnitees. In the event that a claim, action, or proceeding described above is brought, the City shall promptly notify the applicant of any such claim, action or proceeding, and the City will cooperate fully in the 1 QR161NA1 a'^� defense of such claim, action or proceeding. In the event the applicant is required to defend the City in connection with any said claim, action or proceeding, the City shall retain the right to (1) approve the counsel to so defend the City, (2) approve all significant decisions concerning the manner in which the defense is conducted, and (3) approve any and all settlements, which approval shall not be unreasonably withheld. Nothing herein shall prohibit the City from participating in the defense of any claim, action or proceeding, provided that if the City chooses to have counsel of its own to defend any claim, action or proceeding where applicant already has retained counsel to defend the City in such matters, the fees and the expenses of the counsel selected by the City shall be paid by the City. ATTORNEYS' EXPENSES COST REIMBURSEMENT: As a condition of this application, applicant agrees to be responsible for the payment of all City Attorney expenses and costs, both for City staff attorneys and outside consultants retained by the City, associated with the reviewing, process and implementing of the land use approval and related conditions of such approval. City Attorney expenses shall be based on the rates established from time to time by the City Finance Director to cover staff attorney salaries, benefits, and overhead, plus the actual fees and expenses of any attorney consultants retained by the City. Applicant shall reimburse City for City Attorney expenses and costs within 30 days following billing of same by the City. RECOVERY OF ATTORNEYS' FEES BY PREVAILING PARTY: In any action brought to enforce the applicant's obligations, including the Indemnification and Attorneys' Expenses Cost Reimbursement conditions set forth above, the prevailing party shall be entitled to an award of reasonable litigation costs, including attorneys' fees and costs. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on Monday, the 19th day of June, 1995, by the following vote, to wit: AYES: NOES: ABSENT: COUNCILMEMBERS: Cohen, Heller, Phillips, Zappetini & Mayor Boro COUNCILMEMBERS: None COUNCILMEMBERS: None JE IE -M. LEONCIN , City Clerk