Attachment 2

 

TO BE SIGNED AND NOTARIZED -- DRAFT

Attachment 2 of CAW/Carmel Valley Ranch Annexation Conditions of Approval

 

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT

INDEMNIFICATION AGREEMENT FOR PERMIT #M08-02-L4

 

THIS AGREEMENT is made and entered into by and between the Monterey Peninsula Water Management District (“District” or MPWMD) and California American Water (“Guarantor”) upon the date set forth below.

 

1.                  This Agreement has been entered in relation to the issuance of Permit #M08-02-L4 authorized by the MPWMD Board of Directors on September __, 2008 as part of its approval of MPWMD Application #20071212CVR-L4 to amend the California American Water (CAW) Water Distribution System (WDS) to annex a portion of the parcel identified as Assessors Parcel Number (APN) 416-522-020 to enable service to 12 future residential lots associated with an approved subdivision of the parcel at Carmel Valley Ranch, Carmel Valley, Monterey County, California.  The property is currently owned by Carmel Valley Mortgage Borrower, LLC, a Delaware Limited Liability Corporation.  The water source for the subject parcel is the integrated water well network of CAW, a regulated public utility.  This Agreement is a requirement of MPWMD Permit #M08-02-L4, Condition #6, and must be signed by November ___, 2008 (60 days after permit authorization) for Permit #M08-02-L4 to remain valid.

 

2.                  Guarantor desires to indemnify MPWMD to the maximum extent authorized by the Statute as an inducement for MPWMD to undertake the actions referenced in Paragraph 1 without concern for any liability or expense which may result from the good faith performance of MPWMD’s duties.  Creation of this Indemnification Agreement, and the assumption of the duties set forth herein, have induced MPMWD to undertake that action, and if this Agreement shall lapse, the actions of MPWMD as referenced above shall then become null and void. 

 

3.                  Guarantor agrees, in consideration of the District’s participation and approval in the activities referenced in Paragraph 1, to defend with counsel approved in writing by MPWMD, indemnify, and hold MPWMD and its and their elected and appointed officials, agents, officers, attorneys and employees harmless from any claims, actions, proceedings, demands or liability of any kind or nature, including but not limited to personal injury or property damage, arising from or related to the activities referenced in Paragraph 1, services.  This Agreement shall include, but shall not be limited to any action, or proceeding brought against MPWMD or its agents, officers, attorneys or employees to attack, set aside, void, annul, limit, or inhibit the activities referenced in Paragraph 1, and shall expressly include any action undertaken that may include claims or causes of action under the California Environmental Quality Act (CEQA), or the National Environmental Policy Act (NEPA).


4.                  If judgment is entered against Guarantor and MPMWD by a court of competent jurisdiction because of the concurrent actions of MPWMD and Guarantor, Guarantor and MPWMD agree that liability will be apportioned as determined by the court.  Neither party shall request a jury apportionment.

 

5.                  Guarantor’s obligation to indemnify and hold harmless shall include, but not be limited to, damages, fees and/or costs awarded against MPWMD, if any, and the cost of suit, attorney’s fees, and other costs, liabilities and expenses incurred in connection with any proceeding howsoever incurred, to the fullest extend allowed by law.  Guarantor’s obligation to indemnify and hold harmless shall further include, but not be limited to all costs relating to litigation, not limited to preparation of any administrative record, response to discovery, retention of experts, and other related costs.  Indemnification shall further extend to any and all reasonable expenses, including, without limitation, attorney’s fees, expenses incurred in establishing a right to indemnification, costs of investigation and costs of appeal, judgments, fines, settlements and other obligations incurred in connection with any demand, claim or proceeding, or any appeal therefrom, to which MPWMD is a party or threatened to be made a party.

 

6.                  To the extent any action may be affirmatively undertaken by MPWMD in relation to the referenced in Paragraph 1, Guarantor agrees to indemnify MPWMD for all of MPWMD’s costs, fees, attorneys fees and staff time incurred in relation to that matter. 

 

7.                  If required to accomplish to activities referenced in Paragraph 1, Guarantor agrees to indemnify and hold harmless MPWMD for all costs incurred in additional investigation or study of, or for supplementing, redrafting, revising, or amending any document (including any CEQA or NEPA documents) that shall support, defend, or comply with any relevant order. 

 

8.                  Guarantor shall not be liable to indemnify MPMWD with respect to any expense, judgment, fine, settlement or other obligation incurred by MPWMD:

 

(a)        to the extent that such expense, judgment, fine, settlement or other obligation is actually paid or satisfied by an insurer on behalf of Guarantor pursuant to an insurance policy; 

 

(b)        in connection with any remuneration paid to MPMWD, if it shall be finally adjudged that such remuneration was in violation of law;

 

(c)        on account of MPWMD’s misconduct if such misconduct shall be finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful; or

 

(d)        if it shall be finally adjudged that such indemnification is not lawful.

 

9.                  Guarantor further agrees to make no claim, and hereby waive, to the fullest extent permitted by law, any claim or cause of action of any nature against MPWMD, its officers, directors, employees, agents or subconsultants which may arise out of or in connection with activities referenced in Paragraph 1.

 

10.              In the event that Guarantor is required to defend MPWMD in connection with in relation to the referenced in Paragraph 1, MPWMD shall retain the right to approve:

 

a.                   The counsel to so defend MPWMD and its agents;

b.                  All significant decisions concerning the timely manner in which the defense is conducted; and

c.                   Any and all settlements, which approval shall not be unreasonably withheld.

11.              If MPWMD so elects, expenses actually and reasonably incurred by MPMWD in defending any demand, claim or proceeding shall be paid by Guarantor from time to time as requested by MPWMD notwithstanding there may not yet be a final disposition of such demand, claim or proceeding.  Guarantor agrees to advance any such expenses within ten (10) days after receipt from MPWMD of a written request for an advance payment.  MPMWD shall not be obligated, however, to advance any such expenses if it is prohibited by applicable law from advancing such expenses.  In the event that it is not ultimately determined that MPWMD is entitled to be indemnified, MPWMD shall repay the amount of any such expenses so advanced.

12.              MPWMD agrees to cooperate with the Guarantor in the defense of any proceeding.  If MPWMD chooses to have counsel of its own defend any proceeding where the Guarantor has already retained counsel to defend MPWMD in such matters, the fees and expenses of the counsel selected by MPWMD shall be paid Guarantor, except as may otherwise be agreed by MPWMD.  MPWMD shall seek the non-binding advice of Guarantor as to selection of District counsel.

13.              The defense and indemnification of MWPMD set forth herein shall remain in full force and effect throughout all stages of litigation including appeals of any lower court judgments. 

14.              MPWMD shall not settle any demand, claim or proceeding in any manner that would impose any obligation, penalty or limitation on, or that otherwise may adversely affect, Guarantor without Guarantor’s prior written consent.  Neither MPMWD nor Guarantor shall unreasonably withhold its consent to any proposed settlement.

15.              Any permit, appeal or other approval given by MPWMD to Guarantor shall be valid only so long as this Indemnification Agreement is given full force and effect.  If this Indemnification Agreement is revoked the permit, appeal or other approval of MPWMD shall then become null and void. 

16.              This Indemnification Agreement shall bind and benefit MPWMD, its successors and assigns, and Guarantor and Guarantor’s successors in interest.

17.              It is agreed and understood by the parties hereto that this Agreement has been arrived at through negotiations and that neither party is to be deemed the party which prepared this Agreement within the meaning of Civil Code section 1654.

18.              In the event either Party brings an action to enforce rights or to collect moneys due under this Agreement or applies to a court for judgment that indemnification is proper under the circumstances, and is successful in whole or in part in such action or application, the prevailing party in such action shall be entitled to all reasonable fees and expenses (including attorneys' fees) in pursuing or defending such action or application.

19.              Guarantor expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on Guarantor hereby in order to induce MPMWD to undertake the actions stated in Paragraph 1, and acknowledges that MPWMD is relying upon this Agreement.

20.              This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California.  Venue shall be in the County of Monterey.

21.              If any provision of this Agreement, or the application thereof to any person, place or circumstance, is held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such provision shall not affect the validity or enforceability of the other provisions hereof, which provisions shall be deemed separate and distinct agreements, or such provision as applied to any other person, place or circumstance.

22.              No amendment or termination of this Agreement shall be effective unless in writing signed by the parties hereto.

 

 

(see next page for signatures)

 

 

 

 

 

 

 

 

 

 

GUARANTOR:  CALIFORNIA AMERICAN WATER

 

 

By: ___________________________________                   Date:   ________________

   Craig Anthony, General Manager                  

 

 

OWNERS of WATER SYSTEM: (if different from Guarantor)               

 

N/A________________________________             Date:   _______________________

 

 

 

OWNERS of PROPERTY: (if different from Guarantor)

CARMEL VALLEY MORTGAGE BORROWER, LLC, a Delaware Limited Liability Corporation                                              

 

 

By: ___________________________________       Date:   ________________

  (Print or Type Name of authorized representative)                              

 

 

 

ATTACH NOTARY CERTIFICATES  FOR NON-MPWMD SIGNATORS

 

 

 

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT

 

 

By: _________________________________________          Date: _____________________

Darby Fuerst, Interim General Manager                                        

 

 

 

 

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