Attachment 2
DRAFT -- TO BE SIGNED AND NOTARIZED
Attachment 2 to SEPTEMBER
RANCH WDS Conditions of Approval
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
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
_________________________________________
Date: _____________________
Print
or Type Name:
OWNERS of WATER SYSTEM: (if different from
Indemnitor) N/A
___________________________________ Date:
_______________________
Print or Type Name:
By: ________________________________ Date: _________________
David J.
Stoldt, General Manager
ATTACHMENT
– Exhibit A: Legal Description
U:\staff\Boardpacket\2012\20121119\PublicHrng\08\item8_exh8e_attach2.docx