Attachment 2

 

DRAFT  -- TO BE SIGNED AND NOTARIZED

Attachment 2 to SEPTEMBER RANCH WDS Conditions of Approval

 

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT
INDEMNIFICATION AGREEMENT FOR
“SEPTEMBER RANCH” WDS, Permit #M12-06-L4

Preparation Date:   November ____, 2012

 

THIS AGREEMENT (“Agreement”) is made and entered into by and between the Monterey Peninsula Water Management District (“MPWMD”) and September Ranch Partners, LLC (defined as “Indemnitor”) upon the date set forth below.

 

1.                  This Agreement has been entered into in relation to the issuance of the SEPTEMBER RANCH” Water Distribution System (WDS) Permit #M12-06-L4, approved by the MPWMD Board of Directors on November ____, 2012, on behalf of the Indemnitor.   This approval stems from MPWMD Application #20110316SEP to serve the 95-unit September Ranch Subdivision (including residences, an equestrian center and open space parcels) Assessor’s Parcel Numbers (APN) 015-071-010 and -012, and 015-361-013 and -014 at 676 Carmel Valley Road, Carmel Valley, in unincorporated Monterey County, California, as described in the legal description shown as Exhibit A.  The property is currently owned by the Indemnitor.   The water source for the subject WDS is one existing Well SR-1 and at least one new Well located on the property described above.  This Agreement is a requirement of MPWMD Permit #M12-06-L4, Condition #6, and must be received by MPWMD on or before January ___ 2013 (60 days from the preparation date shown above) for this Permit to remain valid. 

 

2.      Indemnitor expressly confirms and agrees that he 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, Indemnitor 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 MPWMD 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 Indemnitor pursuant to an insurance policy; 

 

b.         in connection with any remuneration paid to MPWMD, 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 MPWMD in defending any demand, claim or proceeding shall be paid by Indemnitor  from time to time as requested by MPWMD notwithstanding there may not yet be a final disposition of such demand, claim or proceeding.  Indemnitor agrees to advance any such expenses within ten (10) days after receipt from MPWMD of a written request for an advance payment.  MPWMD 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 Indemnitor and Indemnitor’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 California.  Venue shall be in the County of Monterey.

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)

 

 


INDEMNITOR:  SEPTEMBER RANCH PARTNERS, LLC, a California Limited Liability Company

 

 

By:  __________________________________        Date:   _____________________

James H. Morgens, <title>

                                                                       

 

ATTACH NOTARY CERTIFICATES

 

 

 

OWNER(S) of PROPERTY (if different from Indemnitor)        N/A

 

_________________________________________ Date:   _____________________

Print or Type Name:                                                               

 

 

OWNERS of WATER SYSTEM: (if different from Indemnitor)          N/A    

 

___________________________________ Date:   _______________________

Print or Type Name:

 

 

 

 

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT

 

 

By: ________________________________             Date:   _________________

       David J. Stoldt, General Manager                   

 

 

 

 

 

ATTACHMENT – Exhibit A:  Legal Description

 

 

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