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
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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