Attachment 2
TO BE SIGNED AND NOTARIZED
-- DRAFT
Attachment 2 of Long
Ridge/Well N-31 Additions Conditions of Approval
MONTEREY
PENINSULA WATER MANAGEMENT DISTRICT
INDEMNIFICATION
AGREEMENT FOR PERMIT #M09-02-L4
THIS
AGREEMENT is made and entered into by and between the Monterey Peninsula Water
Management District (“District” or MPWMD) and Santa Lucia Community Services District (“Guarantor”) upon the date
set forth below.
1.
This Agreement
has been entered in relation to the issuance of Permit #M09-02-L4 authorized by
the MPWMD Board of Directors on January __, 2009 as part of its approval of MPWMD
Application #20071107SLC to create
the Long Ridge/Well N-31 Addition to the Santa Lucia Preserve Water
Distribution System (WDS) which occurs within the District boundaries,
including 14 parcels identified as Assessors Parcel Numbers (APN) 239-131-015
through -026, -028 and -03 in Monterey County, California. The Well N-31 is located on parcel APN
239-131-022 on which there is an easement owned by the Guarantor. Well N-31 is part of the integrated water
well network owned and operated by the Guarantor, a regulated public
utility. This Agreement is a requirement
of MPWMD Permit # M09-02-L4, Condition #6, and must be signed by March ___, 2009 (60 days after
permit authorization) for Permit #M09-02-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 permit 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 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.
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
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:
SANTA LUCIA PRESERVE COMMUNITY SERVICES
DISTRICT
By: ___________________________________
Date: ________________
Forrest Arthur, General Manager
OWNERS
of WATER SYSTEM: (if different from Guarantor)
By: ________________________________ Date:
_______________________
OWNERS
of PROPERTY: (if different from Guarantor)
By: ___________________________________
Date: ________________
ATTACH NOTARY CERTIFICATES FOR NON-MPWMD SIGNATORS
By: _________________________________________ Date: _____________________
Prepared
by H. Stern, 1/21/09 at 1 PM
U:\staff\word\boardpacket\2009\20090129\PubHrgs\17\item17_exh17e_attach2.doc