Loading...
HomeMy WebLinkAboutRes - 2007.01 - Authorizing Execution of a Transfer Agreement with the San Manuel Band of Mission Indiansa. SMBMI will grant EV WD a recordable easement across the SMBMI Property by execution of the Slope Easement, without requiring the payment by EV WD of any monetary consideration whatsoever for said real property interest, which conveyance will provide great benefits to EV WD with respect to the anticipated use and development of the EVWD Property; b. SMBMI will accept the Facilities in an "as-is" condition without any representations or warranties on behalf of EVWD; c. EV WD will no longer assume the administrative costs and liabilities associated with the repair and maintenance of the Facilities and the monthly reading of all of the separate water meters located on the Reservation, or for any losses incurred or damages sustained after the water furnished hereunder is transferred to the Facilities, though EVWD will nevertheless continue to receive the cash flow generated by the sale of water to the properties on the Reservation since EVWD will now simply provide water to the Facilities through a master meter to be installed thereon subject to the rules and regulations ofEV WD, and SMBMI will be responsible for the payment of all rates, fees, charges, and assessments levied by EV WD for the delivery of water to the Facilities and the provision of water, sewer, and/or other services to SMBMI; d. Other than claims, damages and liabilities arising from EVWD's breach of the Transfer Agreement, EV WD will not be held liable or responsible for any debts or claims that may arise from the operation thereof, or for any damage claims for injury to persons, including SMBMI and/or its officers, directors, shareholders, guests, invitees, trespassers, agents, contractors, consultants, and employees, or for property damage, from any cause arising out of or in any way related to the Reservationand/or SMBMI's obligations under the Transfer Agreement; e. SMBMI will expressly waive and release EVWD and its agents, officers, directors, and employees from any and all liability for claims, actions, and/or losses related to the Facilities, whether known or unknown, and for any costs and expenses incurred in connection therewith; f. Excepting breach of the Transfer Agreement, or the negligence or willful misconduct of EVWD, SMBMI will indemnify and hold EVWD and its officers, directors, agents, and employees harmless from and against all claims and liabilities of any kind arising out of, in connection with, or resulting from any and all acts or omissions on the part of SMBMI and/or its officers, directors, shareholders, partners, assignees, guests, invitees, trespassers, agents, contractors, consultants, and employees in connection with the Reservation, and the performance of their obligations under the Transfer Agreement, even if occurring after the completion of the transfer, and for any contractual claim or action by a third party, and defend EVWD and its officers, directors, agents and employees from any suits or actions at law or in equity for damages, and pay all court costs and counsel fees in connection therewith. 2 g. SMBMI will also defend, indemnify, and hold EV WD harmless from and against all claims, losses, liabilities, damages, demands, actions, judgments, causes of action, assessments, penalties, costs and expenses (including, without limitation, the reasonable fees and disbursements of legal counsel, expert witnesses, and accountants) which might arise or be asserted against EV WD and/or SMBMI with regard to the Reservation, the Facilities, and/or the Transfer Agreement which are alleged and/or determined to be tortious, and/or in violation of present, and future federal, state, and local laws (whether under common law, statute, rule, regulation, or otherwise), including, but not limited to, the provisions of Article XVI, Section 6, of the California Constitution, and the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and the Guidelines adopted thereunder, California Code of Regulations Section 15000 et seq., all as the same may be amended from time to time, and shall reimburse EVWD and its officers, directors, agents, and employees for any losses incurred as a result thereof; h. Any obligation on the part of the EVWD to supply water to the Reservation will be excused in the event that the performance thereof is interrupted for any of the following reasons: riots, wars, sabotage, civil disturbances, insurrection, explosion, court order, natural disasters such as floods, earthquakes, landslides, fires, labor disturbances not involving EVWD employees and other catastrophic events which are beyond the reasonable control of EVWD; i. EVWD may suspend or refuse water service to the Reservation if SMBMI is in breach, default, or violation of the Transfer Agreement or any rule, regulation, resolution, and/or ordinance of EV WD that is currently in place or may hereafter be adopted, or if such service would adversely affect the health, safety, or welfare of EV WD's customers, or for any reason deemed paramount by EV WD in its reasonable discretion; and j. SMBMI will grant EV WD a limited waiver of its sovereign immunity with respect to the enforcement of the Transfer Agreement. Section 2. In light of the findings made in Section 1 of this Resolution, EV WD's Board of Directors hereby authorizes execution of the Transfer Agreement. ADOPTED this 9`" day of January, 2007 AYES: Directors: Goodin, Lightfoot, Negrete, Wilson NOES: Director Sturgeon ABSTAIN: None ABSENT: None President, Board of Directors 3 v This easement is subject to the following conditions: 1. Grantor reserves the right to full use and enjoyment of said premises, except for the purposes herein granted, provided that such use and enjoyment shall not hinder, conflict, or interfere with the exercise of Grantee's rights hereunder, and that no excavation, building, structure, or obstructions shall be constructed on the said Slope Easement without Grantee's written consent which shall not be unreasonably withheld; provided, however, that notwithstanding the foregoing or an}rthing herein to the contrary, Grantor shall have the right to develop the Slope Easement including, without limitation, constructing improvements thereon) without Grantee's consent, so long as Grantor constructs a retaining wall or provides other compazable facilities or acc;ommodationsthat azefully approved and fully pemutted and that provide reasonable protection to any improvements of Grantee on any adjacent real property previously protected by the slope in the Slope Easement (which slope Grantor may also change without consent subject to the foregoing).. 2. The Slope Easement shall be installed, owned, maintained, and operated by Grantee at its sole cost and expense; however, Grantor shall be solely responsible for the payment of any and all costs associated with the replacement or restoration of any excavation, building, structure, or obstruction that is damaged or destroyed as a result of Grantee's reasonable exercise of the rights gr;inted herein. 3. Grantee covenants to indemnify, defend, and hold Grantor harmless from and against any and all claims, demands, actions, causes of action, suits, judgments, executions, or liability whatsoever which may be brought against Grantor, its heirs, successors, or assigns arising out ofthe construction, reconstruction, installation, removal, replacement, repair, maintenance, operation, and use of the Slope Easement by Grantee. Excepting the sole or active negligence or willful misconduct of'the Grantee, Grantor shall indemnify Grantee and its successors and assigns against, and hold them free of and harmless from, all claims, demands, damages, debts, liabilities, obligations, contracts, agreements, causes of action, suits, and costs of whatever nature, character, or description, whether known or unknown, anticipated or unanticipated, arising out of or related to any and all acts oi• omissions on the part of Grantor and/or its agents, contractors, consultants, and employees, and/or this Easement Grant and the reasonable exercise of the rights granted herein by Grantee and its successors and assigns, and defend Grantee and its successors and assigns from any suits or actions at: law or in equity for damages, and pay all court costs and counsel fees in connection therewith. 4. Tf Grantor determines in its reasonable discretion that the Slope Easement herein granted is being used for purposes other than as expressly described above, then Grantor shall give C2antee written notice thereof and provide therein that Grantee must cease said unauthorized use within fifteen (1 S) days of said notice. If such purported unauthorized use is not timely discontinued to the reasonable satisfaction of Grantor, then Grantor shall have the power to terminate, upon further written notice to Grantee, all rights in the real property conveyed to Grantee and its successors and assigns by this Easement Grant. Grantee agrees to execute any instnunent reasonably requested by Grantor to evidence the termination of the Slope Easement. 2 This Easement Grant shall be construed as if both parties jointly prepazed this instnunent and any uncertainty and ambiguity contained herein shall not be interpreted against the party responsible for the drafting thereof. This Easement Grant shall be interpreted, enforced, and governed by and under the laws of the State of California. If a dispute arises regarding the breach or enforcement of the provisions of this Easement Grant, the prevailing party therein shall be entitled to recover all attorneys fees or other costs actually incurred in connection with reaching a resolution of the dispute whether or not an action, claim, or lawsuit is filed. In any action brought, the entitlement to recover attorneys fees and costs will be considered an element of costs and not of damages. This Easement Grant (a) contains the entire understanding and agreement between the parties relating to the rights herein granted, (b) supersedes and takes the place of all prior understandings and agreements between the Grantee and the Grantor in this regard, whether written, oral, express, or implied, and (c) is a complete statement of the understanding and agreement between the Grantee and the Grantor in this regazd and the terms thereof. The provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto azcd their respective heirs, representatives, executors, administrators, successors, and assigns. Grantor represents, covenants, and warrants that the undersigned is the owner in fee simple of the lands hereinabove described, subj ect only to outstanding encumbrances, if any, now on record in said County, and that Grantor is duly authorized to execute this Easement Grant independent of any approval from any other entity. 1r~~ I Executed this.~:~~n v~ , 200 \;at I-k a ~ 1.. { <. ~.. ~ t ,California. By: C;rantor' ZINC NtOl1./~''I/~~A,', t,i,.~ Cp,L1~ORN1A AI.1.-PURPOSE ACKNOWLEDGMENT r=r- lr~=c-r =r~r-,~rrr-- - - ~r-..=c~.rn.~rr-o<=t-.m.<r- - M~-rm,-cr.~=~~^`.,~~c--:.r>c~c~..-=::.r rc;==State of California County of~-=kt~,.~~;~;L~ t'-~ ~ LL^~,9~-r'1r Orn."~ ~ be/foreme, ~ r ~£%Cvti' J ~ci~i~ Cf.C /~~ /" ~-~ ,e ~ / f ~IJame antl Tale of ON,cer (e.g..'JaneDoe, Notary Puhim)ll personally appeared tiE. Q urn `,~ J ~ i~r <c uc i ~f:,Name( s) of Signer(s)f personally known to me or proved to me on the basis of satisfactory evidence)ilV- J~Canvneston * t439W0 l I`7~'1Pudfc • Ca1lPorr~a ~_san earnarapa CwrltY Nltyccmm. iTj• ~If!{rb ta,sot Place Notary Seal Above to be the person(d/ whose name(,a) is/are subscribed to the within instrument and acknowledged to me that he/ shekhey~executedthe same in his/kteKfFgeir authorized capacity( ies), and that by his/hedtFreir signature(e} on the instrument the person(; or the entity upon behalf of which the person(a') acted, executed the instrument.WITNESS my hand and officio Signat ' e f Notary Pul'~icOPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.Description of Attached Document Title or Type of Do~wta~nt: ~Document Date:of Pages:Signer( s) Other Than,Named Above: ~ /~~/ ~L'~G Cslpacity( ies) Claimed bx Signer(s)Signer' sName: ~'/l.C' /l~lC>_/yZ ><l ! U Si O Individual ^Corporate Officer -Title(s): -Partner - ^ Limited ^ General Attorney in Faci Trustee Guardian or Conservator Other: Signer Is Representing:Corporate Officer - Ttle(s): /Partner - ^ Limit~^ General Attorney in Fact ~ ' .Top of thumb here Top of thumb here Trustee Guardian or Conservato Other: .%' Signer Is~Re respenting: i I1l /2 20061val~onaiNotary Associa0on ~ 935C De Solo Poa., PO. Box 2002 • Chatsworth. CA 91313-2C0? Item No. 5907 R=ortl=rCall TolbF.ee L800~0~6 "o82T v Section 6. NO REPRESENTATIONS WARRAN PIES, UK cvalM ur WATER RIGHTS. The DISTRICT makes no express or implied representations or warranties concerning the quality, pressure, or temperature of any water delivered pursuant to the terms of this AGREEMENT or the manner in which the water is provided, or the FACILITIES or their fitness for any particular purpose, and the DISTRICT shall not be held liable for any losses incurred or damages sustained as a direct or indirect result thereof, nor shall the DISTRICT be held liable for any losses incurred or damages sustained after the water furnished hereunder is transferred to the FACILITIES. Any water conveyed by the DISTRICT under this AGREEMENT shall not serve as the basis of, or otherwise support, any water rights claim that may be asserted by the TRIBE. Section 7. LIABILITY FOR DAMAGES. Other than claims, damages and liabilities arising from the DISTRICT'S breach of this AGREEMENT, the DISTRICT shall not be held liable or responsible for any debts or claims that may arise from the operation of this AGREEMENT, or for any damage claims for injury to persons, including the TRIBE and/or its officers, directors, shareholders, guests, invitees, trespassers, agents, contractors, consultants, and employees, or for property damage, from any cause arising out of or in any way related to the PROPERTY and/or the TRIBE's obligations hereunder. Section 8. RELEASE. The TRIBE hereby expressly waives and releases the DISTRICT and its agents, officers, directors, and employees from any and all liability for the claims, actions, and/or losses set forth in Section 7 above and for any contractual claims brought by Indian Health Services and/or All Mission fndian Flousing Authority in connection with those agreements referenced in Recitals C, D, E and F above and for any costs and expenses incurred in connection therewith. The TRIBE, notwithstanding the provisions of California Civil Code § 1542, which provides as follows: A general release does not extend to claims which the creditor did not know or suspect to exist in his or her favor at the time of the executed release which if known by him or her must have materially affected his or her settlement with the debtor." expressly waives and relinquishes all rights and benefits afforded to the TRIBE thereunder and under any and all similar laws of any state or territory of the United States with respect to the claims, actions, and/or losses referenced above. This AGREEMENT shall act as a release of any claims that may arise from the aforementioned whether such claims are currently known or unknown. The TRIBE understands and acknowledges the significance and consequences of such specific waiver of Civil Code § 1542 and hereby assumes full responsibility for any injuries, damages, losses, or liability that may result firom the claims identified above. This 5 AGREEMENT shall also act as a release of any claims, actions, and/or losses set forth in Section 7 and Recitals C, D, E, and F above, that may arise in the future whether such claims are currently foreseen or unforeseen. Section 9. HOLD HARMLESS. a. Excepting the breach of this AGREEMENT by, or the negligence or willful misconduct of, the DISTRICT, the TRIBE shall indemnify and hold the DISTRICT and its officers, directors, agents, and employees harmless from and against all claims and liabilities of any kind arising out of, in connection with, or resulting from: (i) any and ail acts or omissions on the part of the TRIBE and/or its officers, directors, shareholders, partners, assignees, guests, invitees, trespassers, agents, contractors, consultants, and employees in connection with the PROPERTY, and the performance of their obligations under this AGREEMENT, even if occurring after the completion of the transfer, and (ii) any claim or action by Indian Health Service or All Mission Indian Housing Authority in connection with DISTRICT's performance of its obligations under the agreements described in Recitals C, D, E, and G herein, and defend the DISTRICT and its officers, directors, agents and employees from any suits or actions at law or in equity for damages, and pay all court costs and counsel fees in connection therewith. In addition, the TRIBE agrees to defend, indemnify, and hold the DISTRICT harmless from and against all claims, losses, liabilities, damages, demands, actions, judgments, causes of action, assessments, penalties, costs and expenses (including, without limitation, the reasonable fees and disbursements of legal counsel, expert witnesses, and accountants) which might arise or be asserted against the DISTRICT and/or the TRIBE with regard to the PROPERTY, the FACILITIES, and/or this AGREEMENT which are alleged and/or determined to be tortious, and/or in violation of present, and future federal, state, and local laws (whether under common law, statute, rule, regulation, or otherwise), including, but not limited to, the provisions of Article XVI, Section 6, of the California Constitution, and the Cal'~fornia Environmental Quality Act, Public Resources Code Section 21000 et seq., and the Guidelines adopted thereunder, California Code of Regulations Section 15000 et seq., aN as the same may be amended from time to time, and shall reimburse the DISTRICT and its officers, directors, agents, and employees for any losses incurred as a result thereof. b. Excepting the breach of this AGREEMENT by, or the negligence or willful misconduct of, the TRIBE, the DISTRICT shall indemnify and hold the TRIBE and its officers, directors, agents, members and employees harmless from and against all claims and liabilities of any kind arising out of, in connection with, or resulting from, any and all acts or omissions on the part of the DISTRICT and/or its officers, directors, shareholders, partners, assignees, guests, invitees, trespassers, agents, contractors, consultants, and employees in connection with DISTRICT's activities on the PROPERTY arising out of the access 6 from suit or other legal proceedings, (b)its right to require exhaustion of any Tribal remedies, (c) its right to impose or seek any Tribal remedies, and (d) its right to be sued in the courts of the State of California, as such Courts are or may be established, and consents to suit in accordance with Sections 9(a),11 and 17 of this AGREEMENT. c. TRIBE grants a limited waiver of its sovereign immunity as to suit or other legal proceeding involving a claim if each and every one of the following conditions are met: 1) The claim is made by a party designated under this Section 11, and not by any other person [except as provided in Section 9(a) of this Agreement]; 2) The claim arises out of an alleged breach or other violation by TRIBE, and/or its agents and employees, of one or more of the obligations or duties assumed by TRIBE pursuant to this AGREEMENT; and 3) The DISTRICT gives written notice of such claim to TRIBE and except where DISTRICT is seeking indemnification, injunctive, or other equitable relief, or public interest of the DISTRICT otherwise requires, TRIBE shall have fifteen (15) calendar days in which to cure the breach alleged in the claim to the complete satisfaction of the DISTRICT before judicial proceedings may be instituted. d. The recipients of the benefit of this waiver of sovereign immunity are limited to DISTRICT and its successors. e. TRIBE waives its sovereign immunity from a judgmentororder consistent with the terms and provisions of Sections 9(a), 11 and 17 of this AGREEMENT, TRIBE consents to the jurisdiction of the Superior Court in the County of San Bernardino, State of California, and any court having appellate jurisdiction thereover, consistent with the terms and conditions of Sections 9(a), 11 and 17 'of this AGREEMENT. None of the parties hereto shall object to the jurisdiction or venue of said court. Without in any way limiting the generality of the foregoing, TRIBE expressly authorizes any governmental authorities who have the right and duty under applicable law to take any action authorized by any court, to take such action to give effect to any judgment entered against TRIBE. Section 12. ATTORNEYS' FEES. If a dispute arises which cannot be resolved by arbitration, regarding the breach or enforcement of the provisions of this AGREEMENT, the prevailing party therein shall be entitled to recover all attorneys' fees and other costs actually incurred in connection with reaching a resolution of the dispute whether or not an action, claim, or lawsuit is filed. In any action brought, the 8