DRAFT - TO BE SIGNED AND
NOTARIZED
Attachment 2 of DMC WDS Conditions
of Approval
MONTEREY PENINSULA WATER
MANAGEMENT DISTRICT
INDEMNIFICATION
AGREEMENT FOR
“DMC” WDS, PERMIT #S09-21-L4
Preparation Date:
___________,
2009
THIS
AGREEMENT (“Agreement”) is made and
entered into by and between the Monterey Peninsula Water Management District (MPWMD)
and McAweeney Family Trust dated March
18, 2008 (Dan J. McAweeney and Gayla R. McAweeney, Trustees), (defined as
“Indemnitor”) upon the date set forth below.
1.
This Agreement
has been entered into in relation to the issuance of the “DMC” Water
Distribution System (WDS) Permit #S09-21-L4,
by the MPWMD on behalf of the Indemnitor.
This approval stems from MPWMD Application #20090120DMC to serve potable water and irrigation needs of a multi-tenant commercial building at
Assessors Parcel Number (APN) 013-321-004 at 2611 Garden Road, Monterey, California, on the legal parcel described
as “DEL MONTE RESEARCH PARK ASSRS LOT 9 BLK 1”. The property is currently owned by the Indemnitor. The water source for the subject WDS is one well
located on APN 013-321-004. This
Agreement is a requirement of MPWMD Permit #S09-21-L4, Condition #6, and must
be received by MPWMD on or before ______, 2009 (60 days from
the preparation date shown) for the Permit to remain valid.
2.
Indemnitor
expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed in order to induce MPWMD to undertake the
actions stated in Paragraph 1, and acknowledges that MPWMD is relying upon this
Agreement.
3.
Indemnitor agrees to indemnify MPWMD to the
maximum extent authorized by the law 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 MPWMD to undertake that action, and if this Agreement shall lapse,
the actions of MPWMD as referenced above
shall then become null and void.
4.
Indemnitor agrees,
in consideration of MPWMD’s participation and approval in the activities
referenced in Paragraph 1, to defend,
indemnify, and hold harmless MPWMD and its elected and appointed
officials, agents, officers,
attorneys and employees from all liability, demands, claims, costs, losses,
damages, recoveries, settlements, and expenses (including interest, penalties,
attorney fees, accounting fees, and expert witness fees) of any kind or nature incurred
by MPWMD, known or unknown, contingent or otherwise, directly or indirectly,
including but not limited to personal injury or property damage, arising from
or related to the activities referenced in Paragraph 1. 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, modify 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).
5.
Indemnitor’s obligation
to defend, indemnify and hold harmless shall further include, but not be
limited to all costs relating to litigation, 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.
If required to
accomplish the 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.
7.
Indemnitor 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.
8.
Indemnitor further
agrees to make no claim, and hereby waives, to the fullest extent permitted by
law, any claim or cause of action of any nature against MPWMD, its officials, officers,
directors, employees, and agents which may arise out of or in connection with
activities referenced in Paragraph 1.
9.
In the event that
Indemnitor is required to defend MPWMD in connection with the activities referenced
in Paragraph 1, MPWMD shall retain the right to approve:
a.
The counsel to so
defend MPWMD and its agents, which approval shall be in writing;
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.
10.
MPWMD shall not
be required to participate in the defense of any proceeding. If MPWMD chooses to have counsel of its own
where the Indemnitor has already retained counsel, the fees and
expenses of the counsel selected by MPWMD shall be paid by the Indemnitor. MPWMD
agrees to cooperate with the Indemnitor in the defense of any proceeding.
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.
The defense and
indemnification of MPWMD set forth herein shall remain in full force and effect
throughout all stages of litigation including appeals of any lower court
judgments.
13.
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 Indemnitor without Indemnitor’s prior written consent. Neither MPWMD nor Indemnitor shall unreasonably withhold its consent to any
proposed settlement.
14.
Any permit,
appeal or other approval given by MPWMD to Indemnitor 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.
15.
This
Indemnification Agreement shall bind and benefit MPWMD, its successors and
assigns, and Guarantor and Guarantor’s successors in interest.
16.
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.
17.
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.
18.
This Agreement shall be governed, construed and enforced in accordance
with the laws of the State of
19.
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.
20.
No amendment or termination of this Agreement shall be effective unless
in writing signed by the parties hereto.
(see
next page for signatures)
MCAWEENEY FAMILY TRUST DATED MARCH 18,
2008
By: ________________________________
Date: ________________
Dan J. McAweeney, Trustee
By: ________________________________
Date: ________________
Gayla R. McAweeney, Trustee
OWNERS of WATER SYSTEM: (if different from Guarantor)
___________________________________ Date:
_______________________
(Print or Type Names):
OWNERS of PROPERTY: (if different from Guarantor)
___________________________________ Date:
_______________________
(Print or Type Names):
By: _________________________________________ Date: _____________________
ATTACH NOTARY CERTIFICATES for INDEMNITOR
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