RELATED NEWS ARTICLE: Agha, P.G. at odds over who will pay
to defend lawsuits, KELLY NIX,
The Carmel Pine Cone, June 1, 2012, 1A & 22A
“He (Councilman Dan Miller) pointed to Agha’s agreement to
purchase a $2 million insurance policy that would protect the city from
litigation in the event of Agha or his company, Moss Landin Commercial Park,
were negligent.”
“Miller told The Pine Cone Wednesday the item will likely be
on next week’s city council agenda and that he expects the indemnification
issue to be resolved.”
UPDATE:
CITY OF PACIFIC GROVE
SPECIAL CITY COUNCIL
MEETING
Wednesday, May 23,
2012
“ACTION MINUTES”
CALL TO ORDER
Mayor Garcia, Councilmembers Kampe, Cohen, Cuneo, Fischer, Huitt and Miller in
attendance.
14. UNFINISHED BUSINESS
Reference: Thomas Frutchey, City Manager
Recommended Action:
- Receive
an update on the agreement to initiate and provide funding to establish a
public/private partner relationship between Nader Agha/Moss Landing
Commercial Park, LLC and the City of Pacific
Grove.
- Provide
direction on any remaining outstanding issues related to the
agreement. This
preliminary agreement establishes the parameters and payment provisions
for the completion of the second agreement.
- Direct
staff to file application with the CPUC by May 25, 2012 with fees paid by
Nader Agha.
Action: Upon motion of Councilmember Cuneo to accept Agreement with the exception of paragraph 15 (Indemnification) and through JPA
process request other cities join with Pacific
Grove formally, motion carried.
ADDENDUM:
Paragraph 15
4.15. Indemnification.
MLCP and Nader Agha, personally, agree to indemnify, defend, and hold
City, its Council, officers, agents, and employees free and harmless from any
3rd party claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including attorney’s fees and
costs, that such may incur as a result of a material breach by MLCP of its
obligations under this Agreement.
MLCP and Nader Agha further agree to indemnify, defend, and
hold City, its Council, officers, agents, and employees free and harmless from
any 3rd party claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries, and deficiencies, including attorney’s fees and costs, resulting
from such 3rd party’s property loss or personal injury that result from alleged
negligence by MLCP in the performance of this Agreement. The scope of indemnity for negligent acts
herein shall be identical to the scope of coverage under standard California
Commercial General Liability Insurance Policies.
MLCP agrees to maintain a policy of insurance to cover any
negligent acts or a omissions committed by MLCP, its employees or agents giving rise to 3rd
party claims of property loss or personal injury arising from and in
conjunction with MLCP’s performance of this Agreement. In order
to support its indemnity obligations based upon claims of negligence under this Agreement, MLCP agrees to maintain
a policy of insurance of at least Two Million
Dollars ($2,000,000), and shall name City as an additional insured under such policy.
City shall be given thirty (30) days prior written notice of the intent
to change or chancel such coverage. MLCP
shall provide City with a certificate of insurance or other evidence of such insurance coverage.
Any obligation to Indemnify shall survive termination of
this Agreement, if the alleged act
giving rise to liability occurred during the period during which this
Agreement was in effect.
ABSTRACT: The City of
Pacific Grove’s
May 16, 2012 City Council meeting was continued to
Wednesday, May 23, 2012 at 6:00 P.M. for Open
Session at City Council Chambers, located at
300 Forest Avenue, Pacific Grove. An agenda item includes
14. UNFINISHED BUSINESS A.
Agreement initiating a relationship with Nader Agha to develop a water project
able to meet the needs of
Pacific Grove and the
Monterey Peninsula. The
AGENDA REPORT is embedded, including the Draft
Agreement, dated May 21, 2012. The
RECOMMENDATION of Thomas Frutchey, City
Manager, is as follows:
1. Receive an update on the agreement to
initiate and provide funding to establish a
public/private partner relationship between Nader Agha/Moss Landing
Commercial Park, LLC and the City of Pacific Grove.
2. Provide direction
on any remaining outstanding issues related to the agreement. This preliminary agreement establishes the parameters and payment
provisions for the completion of the second agreement.
Importantly, the DISCUSSION states: Two specific areas of
interest were negotiated over the past several weeks to ensure consistency with
that principle:
• Assurance that the $600,000 Mr. Agha is committing to the
development of the People Project’s EIR, permit applications, and other efforts will
be available when needed; and
• Protection of the City in the event of lawsuits,
regulatory requirements of the CPUC, Coastal Commission, or other permitting bodies, or any other
unintended sources of expenses resulting from the City’s participation in the
Project.
The attached revised agreement contains agreed-to wording in
both areas. This wording is in bold
lettering.
