EXHIBIT 22-B
DRAFT
Amended Well Use Agreement
Between
Gary M. and Ingrid B. Brant
Trustees of the Brant Family Trust
And
Monterey Peninsula Water Management District
By this Amended Well Use Agreement, the Monterey Peninsula
Water Management District, a California special district, and the Brant Family
Trust set all terms and conditions related to access and use of the Schulte
South Irrigation Well as referenced in the Agreement for the Monterey Peninsula
Water Management District To Sell and the Brant Family Trust To Purchase the
Schulte South Irrigation Well.
1. Facts
This Amended Well Use Agreement is executed in connection
with that certain Memorandum of Agreement (MOA) dated 21 August 1997 between
GMB & Associates, Inc., a California Corporation, and the Monterey Peninsula
Water Management District (District), and that certain Well Use Agreement (1997
Well Use Agreement) dated 7 August 1997 between GMB & Associates, Inc. and
the District, and that certain Agreement for the Monterey Peninsula Water
Management District To Sell and the Brant Family Trust To Purchase the Schulte
South Irrigation Well (Sales Agreement) dated April May [insert
day], 2015;
On 5 December 2005, Gary M. Brant notified the District of
the transfer of the real property described in Exhibit "A" in the 1997
Well Use Agreement (Property) to Gary M. Brant & Ingrid B. Brant, Trustees of
the Brant Family Trust (Property Owner);
For the purposes of this Agreement, the term “Well” refers
to that certain water well known as the Schulte South Irrigation Well
constructed by the District on the Property in 1988 for the purpose of irrigating
riparian vegetation within a portion of the riparian corridor of the Carmel
River. The term, and
includes the “Well Area”,
refers to the existing 20-foot by 20-foot area on the Property that
is labeled as “MPWMD Well Site” in Exhibit “A” to the 1997 Well Use Agreement. The Well Area contains the Well.
Property Owner and the District have negotiated in good
faith to execute the Sales Agreement to effect sale of the District-owned Well and a portion of its appurtenances to the Property
Owner;
On April May ______,
2015, the Property Owner acquired the Well and a portion of its appurtenances
on the Property from the District;
Property Owner and the District do herby agree to this
Amended Well Use Agreement (Agreement), which Agreement supersedes all
provisions of the MOA, 1997 Well Use Agreement, and any other oral agreement as
follows:
2. Installation and Location
Property Owner, together with its agents, successors and
assigns, grants to the District, its agents, successors and assigns, the right
to use the well and maintain District Appurtenances for the purpose of
irrigating that portion of the riparian corridor of the Carmel River within the
Project Irrigation System. For purposes of this Agreement, appurtenances to be
retained by District on the Property (District Appurtenances) extend from the
District connection at the Well to the Property line and include, but are not
limited to, a water meter, an irrigation system timer, and subsurface
pipelines. The Project Irrigation System
begins at the Property line and extends two thousand (2,000) feet upstream and two
thousand (2,000) feet downstream of the Well. Each party to this Agreement shall
be responsible for maintaining its own connection to the Well and for metering its
water use from the Well. If the Property
Owner’s meter fails is and needs
replacement, the Property Owner shall notify the District of the date the meter
is to be replaced and the District shall be allowed to inspect the failed meter
to determine the final reading.
3. Ownership of the Well
The Well and all of its appurtenances, except District
Appurtenances, are the property of the Property Owner. If Property Owner chooses not to continue use
of the Well (i.e., the Property Owner proposes to abandon the Well), the Property
Owner shall provide the District sixty (60) days written notice prior to
abandonment. The Property Owner shall be
responsible for all costs of abandonment, unless otherwise agreed to by the
District.
4. Responsibility for Costs
For the purposes of this Agreement, and except as expressly
provided otherwise in this Agreement, the term “Costs” shall include all costs
of operation, improvement, insurance, maintenance, repair,
restoration and replacement of the Well.
Property Owner shall bear primary responsibility for paying all
costs to supply electrical power to the Well; the electrical service shall be
in the Property Owner’s name. Annually,
prior to commencing irrigation of the riparian corridor, the District shall
notify the Property Owner of the date when the District expects to begin using
water from the Well. After cessation of
the irrigation season, the District shall notify the Property Owner of the date
of the last water use from the Well. During
periods of the year when the District uses water from the Well, the District
shall record water use of the Property Owner and the District and provide a
record of water use to the Property Owner at least once per year or on a more
frequent basis if requested. The
Property Owner shall provide the District with a copy of the monthly statement(s)
from the electrical service provider.
The District shall provide to the Property Owner a formula for sharing costs of electrical
power which shall be in proportion to the actual amount of water used by each
party to this Agreement during the period of billing. The District shall pay Property Owner for the
pro rata share of electrical service costs associated with the District’s use
of the Well. Payment shall be made
within sixty (60) days of the presentation of a bill by the Property Owner to
the District for such use. During
periods of the year when the District does not use water from the Well, the
District shall have no obligation to record Property Owner’s water use or
provide a formula for share of costs of electrical power. The District’s only obligation to pay for electrical
service costs during periods of non-use of the Well by the District shall be
one-half of the meter charge. Until such
time as the Property Owner uses water from the Well, the District will pay its
share of the standby meter charge within sixty (60) days of the
presentation of a bill by the Property Owner.
Commencing with execution of this Agreement, the District
shall use a cumulative total of water use to determine the pro rata share of Costs
for maintenance and repair of the Well.(See Section 10 of this Agreement, Well Maintenance
and Repair, regarding responsibility for conducting maintenance and repair.) The
District shall pay Property Owner for the pro rata share of Costs so determined. Payment shall be made within sixty (60) days
of the presentation of a bill for such maintenance and repair, subject to
verification of actual r Costs. Restoration or replacement costs shall be
borne by the District in an amount equal to 1.00 divided by 2.06
multiplied by the remaining potential Length of
Agreement as determined under Section 12, including extensions, divided by 25.
Property Owner shall keep the Well and the Property free and
clear of mechanic's or other liens arising from any work of repair,
restoration, replacement or improvement to the Well Area. Property Owner shall pay any lien, claim or
demand before any action is brought to enforce such a lien against the Well Area
or Property. Property Owner shall indemnify and hold the District free and harmless
from any and all liability from such liens or demands, together with costs and expenses
in connection therewith, including attorney's fees. The District’s only
obligation shall be for Costs and expenses associated with operation,
improvement, maintenance, repair, restoration and replacement of the Well Area
on a pro-rata basis as described above.
Property Owner shall have the right to challenge the
District’s formula and calculation of water use or pro rata shares. Property Owner shall give the District
written notice of such challenge within thirty (30) days after the submission
by the District to the Property Owner of a report of water use or a calculation
of pro rata share. If the District does
not agree with the Property Owner’s challenge, the validity of the challenge
shall be determined by an independent third-party auditor agreed to by the
parties. If the challenge is successful,
the District shall pay all costs of the challenge. If the challenge is unsuccessful, the
Property Owner shall pay all costs of the challenge.
Property Owner shall give the District sufficient advance
notice of the commencement of any repairs or improvements to the Well to allow the District time, and shall permit the
District or its agents to enter the Property upon reasonable notice to the
Property Owner, to post thereon notices of non-responsibility or such other notices
as are required by law or appropriate for the protection of the District’s interest
in the Well and the District Appurtenances from mechanic' s liens or liens of a
similar nature.
5. Well Area Appearance
The Well Area shall be maintained in a manner that will accommodate
all appurtenances necessary for the proper functioning of the Well, District
Appurtenances, and Project Irrigation System.
Property Owner reserves the right to alter the limits of the Well Area , but in no event shall the Well Area be reduced so as
to impair the proper functioning of the Well or supply of water to the
District.
6. Location of Utilities and Waterlines
The District shall have the right to install and maintain a timed
electrical irrigation system at the Well Area for use with the Project
Irrigation System. The District shall have the right to maintain water pipes
from the District’s connection to the Well to the point of connection to the
Project Irrigation System. All
irrigation mainline water pipes shall be installed underground on the Property
between the Well Area and points of connection to the Project Irrigation System.
Plans and specifications for improvements shall be reviewed and approved by the
Property Owner prior to installation. Maintenance of the Project Irrigation System
shall be at the discretion of the District. All Project Irrigation System equipment
and materials installed by the District for the application of irrigation water
to the Project shall be the property of the District.
If the District terminates this Agreement, the District
shall have a right to remove District Appurtenances on the Property within 30
days of written notice of its intent to terminate the Well Use Agreement. If the District does not remove the District
Appurtenances within 30 days after giving its written notice to the Property
Owner of its intent to terminate this Agreement, Property Owner may request that
the District remove District Appurtenances on the Property. If the District receives such written notice,
the District shall remove District Appurtenances within 30 days. If the District fails to remove the District
Appurtenances in such time, the Property Owner may do so.
7. Description of Well Use and Production Limit
The use of this Well and Well Area by the District shall be
limited to the production of no more than one (1.00) acre-foot per year (AFY) of
water to irrigate riparian vegetation along the banks and terraces of the
Carmel River within an area defined as two thousand (2,000) feet upstream and
two thousand (2,000) feet downstream of the Well location. Supply of water from
the Well to the District may be interrupted by the Property Owner for good
cause, without obligation to provide a substitute supply, but shall not be
unreasonably withheld.
The use of this Well and Well Area by the Property Owner
shall be limited to no more than 1.06 AFY of water for use on the portion of the
Property that overlies the Carmel Valley Alluvial Aquifer, the boundaries of
which are described by maps maintained by the District. Property Owner agrees to
sign and Notarize a “Notice and Deed Restriction” (provided separately) for the
Property. The Deed Restriction is
for disclosure purposes and includes a copy of the March 26, 2006 District
letter confirming an exemption for purchase of the Well and a
February
18April 6, 2015 District letter updating
the exemption to include a production limit.
8. Right-of-Entry
The District, its agents and assigns shall have a
right-of-entry, together with personal property and equipment necessary to
effect this Agreement, onto the Property for the purposes of installing,
operating, testing, maintaining and repairing the District Appurtenances and
irrigation system on the Property, subject to the following restrictions:
a. Except during emergencies, all maintenance and repair
work shall be carried out during normal business hours from 8 a.m. to 5 p.m. on
Monday through Friday. If it is necessary to carry out maintenance or repair at
other times for any reason other than an emergency, the District shall obtain
permission from the Property Owner to enter. The only exception to this time
limit is for an emergency declared by the District Engineer during which all
reasonable attempts shall be made by the District to inform the Property Owner
of the need for entry onto the Property.
b. Entry shall be over existing roads and access onto the
Property. The Property Owner reserves the right to relocate access to the Well Area.
9. District Irrigation Water Schedule and System
Operation
Property Owner, together with its agents, successors, and
assigns, grants to the District, and its agents, successors and assigns, the
right to use water produced from the Well for irrigation of riparian vegetation
along the Carmel River within the Project Irrigation System from a Well located on the Property subject to the following
conditions:
a. Property Owner shall cooperate with the District to
provide adequate volume and water pressure for the Property. The District shall
have use of the Well during times when supplemental irrigation is needed as
determined by the District; this shall include times when irrigation is needed
to sustain riparian vegetation or erosion protection plantings in the Project
area. The District’s use of irrigation water from the Well is limited only by
the following restrictions: a) the use of water during any twelve (12) month
period shall not exceed 1.00 acre feet in total; and b) the use of water does
not impair the ability of the Property Owner to maintain a minimum of ten
thousand (10,000) gallons of water in Property Owners storage tank. .
b. If the Well's production falls below the needs of either
the Property Owner or the District, then the District and the Property Owner
shall promptly meet to identify repairs or improvements to the system which
will provide adequate water for both the Project and the Property. For repairs
or improvements required to meet the water needs of both parties, the District
and Property Owner agree to negotiate reimbursement of a fair share of the
costs of such repairs or improvements. Costs of repairs and improvements
required only for needs of a single party shall be borne by that party. If the
District elects not to participate in the costs of repairs or improvements
needed to supply water to the District, the District shall notify the Property
Owner in writing. If the Property Owner
elects not to participate in the costs of repairs or improvements needed to supply
water to the Property Owner, then the Property Owner shall notify the District
in writing.
10. Well Maintenance and Repair
The Property Owner shall be responsible for maintaining the
Well Area, and operation, maintenance, repair restoration and replacement of
the Well and appurtenances common to the operation of the District's Project Irrigation
System and the Property Owner's connection. For such repairs, the Property
Owner reserves the right to cause the repairs to be made or to contract for
such repairs, or to discontinue use of the Well. Responsibility for the costs of operation,
improvement, maintenance, repair, restoration and replacement
of the Well shall be as
specified in Section 4 of this
Agreement.
11. Maintenance of District Appurtenances and Project
Irrigation System
At its discretion, the District shall be solely responsible,
and the Property Owner shall have no responsibility, for the operation, improvement,
maintenance, repair, restoration and replacement of the District Appurtenances
and the Project Irrigation System and the costs thereof.
12. Length of Agreement
To enable the District's option to use water to establish
riparian vegetation within the Project and thereafter, and to maintain the
vegetation in a healthy state during dry periods, this Agreement shall be in
full force for ten (10) years, beginning with the Recordation of this
Agreement.
The District shall have the option to extend this Agreement twoone
five (5) year periods. The District, however, retains the
option to terminate this Agreement at its sole discretion. The District shall provide the Property Owner with thirty
(30) days prior written notification of its intent to terminate the Agreement.
13. Hold Harmless Agreement
The District shall indemnify, defend, and hold harmless the
Property Owner from any and all liability which may occur as a result of the
operation, maintenance and repair of the District’s Appurtenances or of the
Project Irrigation System installed by the District, as described in the Agreement.
In all circumstances, the effect of this offer to indemnify, defend and hold harmless
under this paragraph is limited. Under no circumstances shall aggregate costs or
expense incurred by the District pursuant to this indemnity provision exceed $2,000,000.
This provision shall not create a presumption or inference that any future
damage or loss has been caused by the District and/or its agents, contractors,
inspectors, or employees during the operation, maintenance or repair of the Districts’
Appurtenances, Project irrigation system, or otherwise.
The Property Owner shall indemnify, defend, and hold
harmless the District from any and all liability which may result from the
Property Owner’s (and/or its agents, contractors, or employees) negligence or
intentional conduct.
14. Recordation
This Agreement shall be recorded in the Office of the
Monterey County Recorder. All recording expenses shall be the sole
responsibility of the District.
15. Covenant to Run with the Land
The parties intend this Agreement to run with the land and
to be binding upon all successors in interest to the parties, without
restriction, except as to term as written in the provisions for Length of
Agreement.
16. Hazardous Materials
The District shall comply with all laws and regulations,
including the giving of required notices, relative to the possession, storage,
use, release, discharge, disposal or omission of or from the Well Area by
District or District's agents and contractors or any toxic, hazardous or
pollution substance (including, petroleum, crude oil and any fraction thereof) in
any form whatsoever.
District shall provide the Property Owner with copies of any
"business plan" prepared and filed by District pursuant to the
requirements of Health and Safety Code Section 25500 and following, as well as
any changes made thereto. District shall also promptly notify Property Owner in
writing of any release or threatened release of a toxic, hazardous or polluting
substance or material (including petroleum, crude oil and any fraction thereof)
from or upon the Property which results from District's activities or those of
District's agents or contractors or of which District otherwise becomes aware, which
required reporting under Health and Safety Code 25507. To the extent arising
from District's activities, District shall promptly and fully investigate,
report, characterize and remediate any contamination in, on, over or under the
Property Owner's Property caused by the possession, use, storage, release,
discharge, disposal or emission of any toxic, hazardous or pollution substance
(including petroleum, crude oil and any fraction thereof), and shall indemnify,
defend, and hold Property Owner harmless from any and all loss, injury, death
or damage, and all costs of all regulatory or enforcement proceedings, fines, penalties
and the costs of consultants, experts, attorneys and other professionals,
arising out of or as a result of the presence or claimed presence in, on over
or under the Property of any toxic, hazardous or polluting substance (including
petroleum, crude oil and any fraction thereof) to the extent arising from
District's activities on the Property.
The Property Owner shall comply with all laws and
regulations, including the giving of required notices, relative to the
possession, storage, use, release, discharge, disposal or omission of or from
the Well Area by Property Owner or Property Owner's agents and contractors of
any toxic, hazardous or pollution substance (including, petroleum, crude oil and
any fraction thereof) in any form whatsoever. Property Owner shall
provide the District with copies of any "business plan" prepared and
filed by Property Owner pursuant to the requirements of Health and Safety Code
Section 25500 and following, as well as any changes made thereto. Property
Owner shall also promptly notify District in writing of any release or
threatened release of a toxic, hazardous or polluting substance or material (including
petroleum, crude oil and any fraction thereof) from or upon the Well Area which
results from Property Owner's activities or those of Property Owner's agents or
contractors or of which Property Owner otherwise becomes aware, which required reporting
under Health and Safety Code 25507. To the extent arising from Property Owner's
activities, Property Owner shall promptly and fully investigate, report, characterize
and remediate any contamination in, on, over or under the Well Area caused by
the possession, use, storage, release, discharge, disposal or emission of any
toxic, hazardous or pollution substance (including petroleum, crude oil and any
fraction thereof), and shall indemnify, defend, and hold District harmless from
any and all loss, injury, death or damage, and all costs of all regulatory or
enforcement proceedings, fines, penalties and the costs of consultants,
experts, attorneys and other professionals, arising out of or as a result of
the presence or claimed presence in, on over or under the Well Area of any
toxic, hazardous or polluting substance (including petroleum, crude oil and any
fraction thereof) to the extent arising from Property Owner's activities on the
Well Area.
17. Default/Remedies of Default
In the event the District fails to perform or observe any
other agreements, covenants or conditions of the Agreement, on the part of
District to be performed, and such failure is not cured within thirty (30) days
after the date of which Property Owner gives the District written notice of default,
Property Owner may then elect in addition to any other remedies that may be
available to Property Owner at law or in equity to terminate this Agreement
upon thirty (30) days written notice unless within such thirty (30) days, such
Event of Default has been cured.
In the event the Property Owner fails to perform or observe
any other agreements, covenants or conditions of the Agreement, on the part of Property
Owner to be performed, and such failure is not cured within thirty (30) days
after the date of which District gives Property Owner written notice of default,
the District may then elect in addition to any other remedies that may be
available to District at law or in equity to terminate this Agreement upon
thirty (30) days written notice unless within such thirty (30) days, such Event
of Default has been cured.
18. Resolution of Disputes
Any dispute between the Parties shall be resolved in a court
of law; venue shall be in the County of Monterey. Should any dispute arise regarding this
Agreement, the prevailing party shall be entitled to its reasonable attorney
fees and costs, including costs of experts.
19. Notices
Any notice or other written communication required or
permitted herein shall be in writing and may be delivered personally or by
express delivery service, telegram, telephonic facsimile, or by United States
mail, registered or certified, postage prepaid with return receipt requested,
addressed to the party for whom intended as follows:
Property
Owner: Gary M. Brant & Ingrid B. Brant
Trustees
of the Brant Family Trust
8720
River Meadow Road
Carmel,
California 93940
District: General Manager
Monterey Peninsula
Water Management District
P.O. Box # 85
Monterey,
California 93942-0085
Signed: By:
_______________________________ Date: _____________________
Trustee
of the Brant Family Trust
Signed: By:
_______________________________ Date: _____________________
Trustee
of the Brant Family Trust
Signed: By:
_______________________________ Date: _____________________
General
Manager
Monterey
Peninsula Water Management District
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22_Exhibit 22-B.docx