HomeMy WebLinkAboutCC Resolution 12786 (Appeal Ninth Circuit Court of Appeal Judgment)RESOLUTION NO. 12786
RESOLUTION AUTHORIZING THE CITY MANAGER TO PURCHASE
AN APPEAL BOND AND EXECUTE AN INDEMNITY AGREEMENT FOR
THE CITY'S APPEAL TO THE NINTH CIRCUIT COURT OF APPEAL
FROM THE DISTRICT COURT'S JUDGMENT IN MHC FINANCING
LIMITED PARTNERSHIP v. CITY OF SAN RAFAEL.
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The CITY MANAGER is authorized to purchase a 2 -year appeal bond in the amount of
$2,094,750 for a premium of $27,127.00, and to execute the related General Agreement of
Indemnity in the form on file with the City Clerk, in connection with the City's appeal to the
Ninth Circuit Court of Appeal from the Judgment of the District Court for the Northern District
of California in MHC Financing Limited Partnership v. City of San Rafael, Case No. C00-2785
VRW.
I, ESTHER C. BEIRNE, 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 City
Council of said City held on Monday, the 201h day of July, 2009 by the following vote, to wit:
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ESTHER C. BEIRNE, City Clerk
0
ZURICH GENERAL AGREEMENT OF INDEMNITY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Upon the request made by the Indemnitors, as hereinafter defined, the ZURICH AMERICAN INSURANCE COMPANY and its
Subsidiaries and Affiliates including, but not limited to, the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, COLONIAL AMERICAN
CASUALTY AND SURETY COMPANY, and AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY (hereinafter called Surety),
has executed, or procured the execution of, and may, from time to time hereafter execute or procure the execution of bonds, undertakings, and/or
obligations of suretyship or guarantee (herein called Bond or Bonds) on behalf of the Indemnitors or on behalf of any of the Indemnitors' present or
future, directly or indirectly owned subsidiaries or affiliates, or on behalf of any other legal entity in which the Indemnitor has an ownership interest
including, but not limited to, corporations, partnerships, limited liability companies and joint ventures, whether alone or in joint venture with others
whether or not named herein, and any corporation, partnership or person upon the written request of Indemnitors; and
WHEREAS Indemnitors, as herein used, shall mean THE CITY OF SAN RAFAEL, a California Charter City on behalf of itself and all present or
future, directly or indirectly owned subsidiaries or affiliates, or on behalf of any other legal entity in which the Indemnitor has an ownership interest
including, but not limited to, corporations, partnerships, limited liability companies and joint ventures, whether alone or in joint venture with others
whether or not named herein, and
WHEREAS Indemnitors hereby represent that it has the full and present authority to execute this document, act on behalf of and bind all Indemnitors
to the agreement, terms and conditions as set forth in this General Agreement of Indemnity, and
WHEREAS, the Indemnitors have a substantial, material and beneficial interest in the obtaining of the Bond or Bonds or in the Surety's refraining
from cancelling said Bond or Bonds.
AND NOW, THEREFORE, in consideration of the execution of any Bond or Bonds by the Surety or the Surety refraining from canceling said
Bond or Bonds, the Indemnitors, and each of them, for themselves, each of their heirs, executors, administrators, successors and assigns, jointly and
severally, do hereby covenant and agree with the Surety as follows:
FIRST: To pay to the Surety, in advance, the premium or premiums for any such Bond or Bonds, in accordance with the schedule of rates
attached to or to be attached hereto, as long as liability thereunder shall continue, and until evidence, satisfactory to the Surety, of the termination of
such liability shall be furnished to it at its home office:
SECOND: To indemnify the Surety from and against any and all liability, loss, costs, damages, attorneys' fees and expenses, of whatever kind
or nature, heretofore or hereafter sustained or incurred by the Surety by reason, or in consequence of its executing any such Bond or Bonds as surety or
co -surety, or procuring the execution thereof, in making any investigation on account of any such Bond or Bonds, in defending or prosecuting any
action, suit or other proceeding which may be brought in connection therewith, in enforcing any of the agreements herein contained, and in obtaining a
release tiom liability under any such Bond or Bonds; and to indemnify the Surety to the full amount of liability, loss, costs, damages, attorneys' fees
and expenses as aforesaid, regardless of any reinsurance that may be carried on any such Bond or Bonds;
THIRD: That the Surety shall have the right and is hereby authorized, but not required: (a) to adjust, settle or compromise any claims,
demands, suits or judgments upon any such Bond or Bonds; (b) to assent to any change whatsoever in any such Bond or Bonds, and/or any contract or
contracts referred to in any such Bond or Bonds and/or in the general conditions, warranties, plans and/or specifications accompanying said contract or
contracts and to assent to or take any assignment or assignments, to execute or consent to the execution of any continuations, extensions or renewals of
any such Bond or Bonds and to execute any substitute or substitutes therefore, with the same or different conditions, provision and obligees and with
the same or larger or smaller penalties, all of the aforesaid without notice to or knowledge of the Indemnitors, it being expressly understood and agreed
that the Indemnitors shall remain bound under the terms of this instrument even though any such assent by the Surety does or might substantially
increase the liability of said Indemnitors; (c) to attach hereto a schedule of rates and copy or copies of any such Bond or Bonds, to fill up any blanks
left herein, and to correct any errors in filling up any blanks herein, or in the schedule of rates, it being hereby agreed that such schedule and such copy
or copies, when so attached, and that such insertions or corrections, when so made, shall be prima facie correct;
FOURTH: The Indemnitors hereby consenting, will assign, transfer and set over, and does hereby assign, transfer and set over to the Surety,
as collateral, to secure the obligations in any and all of the paragraphs of this Agreement and any other indebtedness and liabilities of the Indemnitors
or on behalf of any of the Indemnitors present or future, directly or indirectly owned subsidiaries or affiliates, or on behalf of any other legal entity in
which the Indemnitor has an ownership interest including, but not limited to, corporations, partnerships, limited liability companies and joint ventures,
whether alone or in joint venture with others whether or not named herein, and any corporation, partnership or person upon the written request of
Indemnitors to the Surety, whether heretofore or hereafter, incurred, the assignment in the case of each contract to become effective as of the date of the
bond covering such contract a license to use, without cost to the Surety, any interest the Indemnitors may have in and to all copyrights, inventions,
applications, patents, or any other form of intellectual property, and any improvements thereon, which now, or may hereafter, relate to any and all of the
contracts referred to in the Bonds or elsewhere, or which are now, or may hereafter be, embodied in any drawings, plans, designs, architectural works,
J 1 l 17b(Commercial Surety)
Ed. 07-05
documents, specifications, models, machinery, equipment, plants, processes or other materials referred to in the contract.
FIFTH: The Indemnitors hereby consenting, will assign, transfer and set over, and does hereby assign, transfer and set over to the Surety, as
collateral, to secure the obligations in any and all of the paragraphs of this Agreement and any other indebtedness and liabilities of the Indemnitors to
the Surety, whether heretofore or hereafter, incurred, the assignment in the case of each contract to become effective as of the date of the bond covering
such contract, but only in the event of (1) any abandonment, forfeiture or breach of any contracts referred to in the Bonds or of any breach of any said
Bonds; or (2) any breach of the provisions of any of the paragraphs of this Agreement; or (3) a default in discharging such other indebtedness or
liabilities when due; or (4) any assignment by the Indemnitors for the benefit of creditors, or of the appointment, or of any application for the
appointment, of a receiver or trustee for the Indemnitors whether insolvent or not; or (5) any proceeding which deprives the Indemnitors of the use of
any of the machinery, equipment, plant, tools or material referred to in section (b) of this paragraph; or (6) the Indemnitors dying, absconding,
disappearing, incompetency, being convicted of a felony, or imprisoned if the Indemnitors be an individual: (a) All the rights of the Indemnitors in,
and growing in any manner out of, all contracts referred to in the Bonds, or in, or growing in any manner out of the Bonds; (b) All the rights, title and
interest of the Indemnitors in and to all machinery, equipment, plant, tools and materials which are now, or may hereafter be, about or upon the site or
sites of any and all of the contractual work referred to in the Bonds or elsewhere, including materials purchased for or chargeable to any and all
contracts referred to in the bonds, materials which may be in process of construction, in storage elsewhere, or in transportation to any and all of said
sites; (c) All the rights, title and interest of the Indemnitors in and to all subcontracts let or to be let in connection with any and all contracts referred to
in the Bonds, and in and to all surety bonds supporting such subcontracts; (d) All actions, causes of actions, claims and demands whatsoever which the
Contractor may have or acquire against any subcontractor, laborer or materialman, or any person furnishing or agreeing to fumish or supply labor,
material, supplies, machinery, tools or other equipment in connection with or on account of any and all contracts referred to in the Bonds; and against
any surety or sureties of any subcontractor, laborer, or materialman; (e) Any and all percentages retained, receivables and any and all sums that may be
due or hereafter become due on account of any and all contracts referred to in the Bonds and all other contracts whether bonded or not in which the
Contractor has an interest.
SIXTH: To pay to the Surety upon demand an amount sufficient to discharge any claim made against the Surety on any Bond or Bonds. This
sum may be used by the Surety to pay such claim or be held by the Surety as collateral against any loss on any Bond or Bonds.
SEVENTH: That liability hereunder shall extend to, and include, the full amount of any and all moneys paid by the Surety in the settlement or
compromise of any claims, suits and judgments thereupon, in good faith, under the belief that it was liable therefore, whether liable or not, as well as of
any and all disbursements on account of costs, attorneys' fees and expenses as aforesaid, which may be made under the belief that such were necessary,
whether necessary or not;
EIGHTH: That, in the event of payment, settlement or compromise of liability, loss, costs, damages, attorneys' fees, expenses, claims,
demands, suits or judgments as aforesaid, in connection with any such Bond or Bonds, an itemized statement thereof, sworn to by any officer or officers
of the Surety, or the voucher or vouchers, or other evidence of such payment, settlement or compromise, shall be prima facie evidence of the fact and
extent of the liability of the Indemnitors in any and all claims or suits hereunder;
NINETH: That the rights, powers and remedies given the Surety under this Agreement shall be and are in addition to, and not in lieu of, any
and all rights, powers, and remedies which the Surety may have or acquire against the Indemnitors or others whether by operation of law or otherwise.
TENTH: To waive, and do hereby waive, all right to claim any of their property, including homesteads, as exempt from levy, execution, or
sale or other legal process, under the laws of any state or states;
ELEVENTH: That, in case any of the Indemnitors shall fail to execute this instrument, or in case any of the Indemnitors, who execute this
instrument, shall not be bound for any reason, the other Indemnitors shall nevertheless be bound hereunder for the full amount of liability, loss, costs,
damages, attorneys' fees and expenses as aforesaid;
TWELVETH: To waive, and do hereby waive, notice of any breach or breaches of any such Bond or Bonds, or of any act or default that may
give rise to claim hereunder;
THIRTEENTH: That this instrument shall be liberally construed so as to fully protect the Surety;
FOURTEENTH: That suits may be brought hereunder as causes of action may accrue, and the bringing of one or more suits, or the recovery
of judgment orjudgments therein shall not prejudice or bar the bringing of suits upon other causes of action, whether theretofore or thereafter arising:
FIFTEENTH: That the Surety does not guarantee the prompt issuance of any such Bond or Bonds, or the acceptance thereof by the obligee or
obligees therein named, and that the Surety shall have the absolute right to decline to execute any such Bond or Bonds;
SIXTEENTH: That in the event the Surety procures the execution of any such Bond or Bonds by some other surety or sureties, or executes
such Bond or Bonds with other surety or sureties as co -sureties, or reinsures any portion of such Bond or Bonds with other surety or sureties as
reinsurers, then all the terms and condition of this instrument shall inure to the benefit of any such surety or sureties, including the right to bring action
hereunder;
J I17b(Commercial Surety)
Ed. 07-05
SEVENTEENTH: That the Indemnitors shall continue to remain bound under the terms of this instrument on account of any such Bond or
Bonds even though the Surety may from time to time hereafter, with or without notice to or knowledge of the Indemnitors, accept other or additional
agreements of indemnity on similar or other forms to indemnify it in connection with the execution or procurement of any such Bond or Bonds, it being
hereby expressly understood and agreed by the Indemnitors that any and all other rights which the Surety may have or acquire against the Indemnitors
and/or others under any such other or additional agreements of indemnity shall be in addition to, and not in lieu of, the rights afforded by the Surety
under this instrument.
EIGHTTEENTH: The Indemnitors will on request of Surety procure the discharge of Surety from any Bond and all liability by reason thereof.
If such discharge is unattainable, the Indemnitors will if required by Surety, either deposit collateral with Surety, acceptable to Surety, sufficient to
cover all exposure under such Bond or Bonds, or make provisions acceptable to Surety for the funding of the bonded obligation(s).
NINETEENTH: NONE
Signed, sealed and dated this 21st day of JULY, 2009.
FOR CITY GOVERNMENT ENTITY
CITYOFTA RAFAEL, a Calif rliia �harter City
by
KEN NOMkHOFF, City Manager
by resolution of the San Rafael City unci dated
7/20/09 which is attached to and for part of this
document
For Acknowledgment by City Government Indemnitor(s)
STATE OF C'a��ry/.'nh"fi 1 SS:
COUNTY OF 40 w' f
On this ',;lSL•-day of , 2Q23 before me e5 t --i L C f� ���/ �'/L�= a Notary Public in and for the State of
California, personally appeared /-/ iuLp'ez g carr= who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity(ies) and that by his signature on this instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed this instrument.
I certify under Penalty of Perjury under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
[ seal ]
Notary Public
JI 117b(Commercial Surety)
Ed. 07-05
ESTHER C. SEIRNE
CommisSion # 1744802
Notary Public - California
Marin County
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