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HomeMy WebLinkAbout2018-050011 2018050011 TOMMY Gong - County Clerk-Recorder San Luis Obispo 12/04/2018 04:08 PM RECORDING REQUESTED BYRecorded at the request of AND WHEN RECORDED MAIL TO: PUBLIC 8 Titles: 1 Pages: Fees: $0.00 City of Arroyo Grande Taxes: $0 00 AtmTotal: $0.00: City Clerk 300 E.Branch St. 1\1\%Mill' Arroyo Grande,CA 93420 SPACE ABOVE FOR RECORDER'S USE DEFENSE AND INDEMNITY AGREEMENT This Defense and Indemnity Agreement("Agreement") is made as of (Ckjte(,02018 by and between The Heights at Vista Del Mar Group,LLC,a California limited liability company ("Developer")and The Heights at Vista Del Mar Homeowners Association,a California nonprofit mutual benefit corporation ("Association") (collectively Developer and Association are referred to herein as "Indemnitor"), and the City of Arroyo Grande, a municipal corporation ("City" and "Indemnitee"), collectively referenced herein as "Parties." RECITALS A. Developer is the subdivider and designed and installed certain stormwater facilities on that certain real property located in the City of Arroyo Grande, County of San Luis Obispo, State of California, described as Tract No. 3048, recorded December 17, 2015, in Book 35, Pages 65-71 of Maps, in the Office of the San Luis Obispo County Recorder (the"Property"). B. Tract No. 3048 has recorded additional easements to reflect certain drainage easements and other corrections,including stormwater facility improvements located on the following:Lots 11, 12, 13, 15, 16, 17,20,21 and 23 of Tract No. 3048 ("Stormwater Facilities"). C. Among the existing drainage facilities used for historic run off and accessed for the benefit of the Property is a concrete drainage channel ("Drainage Channel") located on adjacent property not owned or controlled by Developer that has been used for historic drainage, which was constructed to carry the historic water flow from the Property to public drainage at S. Via Belmonte Ct. The Property drains, in part,to this channel from its boundary through an existing unimproved dirt slope. D. The owner of the property on which the Drainage Channel is located will not grant an easement to Developer to enable the installation of additional drainage improvements approximately 30'+/- from the property line to the entrance of the concrete Drainage Channel. Accordingly, to address drainage in this area, the Developer has designed the detention basins and infiltration wells on Tract 3048 to allow for the release of storm and surface water discharge at a slower velocity and with less volume than historical conditions. 1 E. The City has agreed to approve the Stormwater Facilities, without additional drainage improvements to property not within Indemnitors control to connect stormwater flow from the Property to the Drainage Channel, provided Indemnitor agrees to defend, indemnify and hold the City harmless from claims related to the Stormwater Facilities. Based on the foregoing, the Indemnitor agrees to indemnify City as follows: AGREEMENT The Parties agree as follows: 1. Defense and Indemnification. a. Scope. Indemnitor shall hold harmless, defend, and indemnify Indemnitee, its agents, officers,directors,and employees (hereafter referred to collectively as Indemnitee)from and against any and all attorneys' fees, liability, loss, costs, damages, claims, demands, and expenses of any kind (hereafter referred to individually and collectively as "Claim(s)") which directly or indirectly arise out of or are in any way associated with the design, construction, maintenance and operation of the Stormwater Facilities on Tract 3048. To the extent that the obligation in this paragraph is unenforceable because it violates any law or public policy as determined by a court of law, Indemnitors will contribute the maximum amount that it is permitted to pay. The City agrees that the indemnification provided in this Agreement is limited to Claims, actions or proceedings brought by third parties and is not intended to cover any claim, action or proceedings brought by Developer or the Association. b. Notice of Claim(s) And Request for Indemnification. Indemnitee shall promptly notify Indemnitor in writing of any Claim(s)for which Indemnitee seeks indemnification under this Agreement. The notification shall include such details regarding the nature of the Claim(s) as are known by Indemnitee at the time and shall be deemed timely unless Indemnitor's ability to defend against the Claim(s) is substantially adversely affected by any delay caused by Indemnitee, due to circumstances within Indemnitee's reasonable control, in providing the notification. Indemnitor shall have no obligation to defend or indemnify against Claims of which Indemnitor was not provided notice by City prior to Indemnitee resolving such Claims. Except as provided herein, Indemnitor shall have the sole right to determine the management and payment of Claims subject to this Agreement. c. Investigation. Indemnitee will reasonably cooperate with Indemnitor in any investigation of any Claim(s)for which Indemnitee seeks indemnification. d. Indemnitor's Notice of Decision Regarding Request For Indemnification and Obligation to Provide Either Unconditional or Conditional Indemnification. Within ten days after delivery of Indemnitee's notice pursuant to paragraph lb. above, Indemnitor shall notify Indemnitee in writing whether Indemnitor will (i) provide unconditional indemnification of Indemnitee against the Claim(s) or (ii) provide conditional indemnification of Indemnitee against the Claim(s). Indemnitor may provide conditional indemnification in lieu of unconditional indemnification only if Indemnitor asserts that a Claim(s) tendered by Indemnitee for indemnification and defense is not a Claim(s) covered by this Agreement. Indemnitor must provide either unconditional indemnification or conditional 2 • indemnification and Indemnitor's refusal to do either will be deemed material breach of this Agreement. e. Unconditional Indemnification. If Indemnitor agrees to provide unconditional indemnification against a Claim(s),Indemnitor's obligation to hold harmless,defend and indemnify the Indemnitee will be absolute from that point forward for both indemnification and defense and shall be subject to the following provisions: (i) At the discretion of Indemnitee, the defense of any Claim(s) may be undertaken and performed entirely by Indemnitor, provided that Indemnitor shall defer to the reasonable participation and approval of Indemnitee as to the manner of performance. (ii) Indemnitor will not enter into any settlement that imposes any financial obligation on Indemnitee or permit any consequent lien,encumbrance or other adverse charge to exist upon any asset of Indemnitee. (iii) Indemnitor will obtain Indemnitee's advance written approval for any settlement of a Claim(s) that imposes any liability or obligation of any kind(other than an obligation or liability described in subparagraph(i) of this paragraph) on Indemnitee. f. Conditional Indemnification. If Indemnitor does not agree to provide unconditional indemnification against a Claim(s),Indemnitor will nevertheless provide Indemnitee with conditional indemnification against the Claim(s). Conditional indemnification will include all costs of defending such Claim(s) (including attorneys' fees and costs, consultants' and experts' fees and costs, and investigation expenses) with legal counsel, consultants and experts chosen by Indemnitee and approved (which approval will not be unreasonably delayed or withheld) by Indemnitor. If it is determined by a final and.non-appealable judicial decision ("Final Decision") that the Claim(s) are not covered by this Agreement, then Indemnitee will reimburse Indemnitor for any indemnity payments made and all reasonable costs incurred by Indemnitor, in good faith and in the exercise of a reasonable discretion, in defending such Claim(s) (including attorneys' fees and costs, consultants' and experts' fees and costs, and investigation expenses). Payments due pursuant to this paragraph will be paid or reimbursed by Indemnitee following Indemnitor's written . demand accompanied by reasonable substantiating evidence. Nothing in this Section limits Indemnitor's obligation to indemnify Indemnitee for costs of defending any Claim(s) against which Indemnitor wrongfully refuse to defend Indemnitee. g. Payment of Claim(s). Any amounts reasonably necessarily paid or incurred by Indemnitee for any Claim(s) against which Indemnitor is required to provide conditional or unconditional indemnification: (i) will be paid or reimbursed by Indemnitor within sixty days after Indemnitee's written demand (which must be accompanied by reasonable substantiating evidence); and 3 - (ii) without limiting Indemnitor's obligation to pay the amounts in a timely manner, will bear interest after the due date at the prime interest rate on the due date plus two full percentage points. 2. Successors and Assigns. The terms, provisions, and conditions contained in this Agreement shall be binding upon and inure to the benefit of the Parties and each of them and their heirs, successors, and assigns. 3. Notice. Any notice required by this Agreement must be in writing and given by personal delivery or by certified mail,return receipt requested, addressed to the City as follows and the Indemnitor at the addresses set forth below their signatures hereto. To City: City of Arroyo Grande Teresa McClish Community Development Director 300 East Branch Street Arroyo Grande, CA 93420 With a copy to: Heather K. Whitham City Attorney Carmel&Naccasha LLP 1410 Marsh Street San Luis Obispo, CA 93401 Any notice given pursuant to this Agreement will be deemed given upon receipt thereof or upon the recipient's refusal to accept delivery. Any party may change the address for delivery of notices by sending notice thereof to all other parties in the manner set forth herein. 4. Construction by California Law. This Agreement is entered into in the State of California and shall be construed and interpreted in accordance with California law. 5. Forum Selection. Any suit, claim, or legal proceeding of any kind related to this Agreement, including any action to enforce the terms of this Agreement, shall be filed and heard in a court of competent jurisdiction in California and in the County of San Luis Obispo. 6. Interpretation. The terms of this Agreement shall be construed without regard to any presumption or rule regarding construction against the party drafting the Agreement.Nothing in this Agreement, nor any performance under this Agreement, nor any payment under this Agreement will constitute or be construed as any admission or evidence of any liability or violation of any law,rule,regulation, or policy by any party. 7. Amendments. No amendment,modification, or supplement to this Agreement shall be binding on any party unless it is in writing and signed by both Indemnitor and Indemnitee. 8. Waiver. Any waiver of any breach of any term or conditions of this Agreement shall not operate as a waiver of any other breach of such term or condition or of any other term or condition of this Agreement. 4 9. Counterparts. This Agreement may be executed in counterparts. 10. Authority. Each party represents and warrants to every other party that it has the power and authority to enter into and perform its obligations under this Agreement. 11. Use of Terms.As used herein,whenever the context so requires,the neuter gender includes the masculine and feminine, and the singular gender includes the plural, and vice versa. Defined terms are to have their defined meaning regardless of the grammatical form, number, or tense of such terms. 12. Attorneys' Fees. In any legal action to enforce this Agreement, the Parties shall bear their own attorneys' fees and costs. [Signatures on following page.] 5 In Witness Whereof, the parties have signed this Agreement as of the date set forth in the first paragraph above. THE HEIGHTS AT VISTA DEL MAR, CITY OF ARROYO GRANDE LLC,a California limited liability company By: Innovative Housing Solutions, Inc., a California corporation By: Iv._ 81Cl)C By: C-v Jn Blankenship James a n, City Manager Its: President ATTEST: Date: "' I ,2018 - Address: 322 Creekview Way " a.143114.101A--- Arroyo Grande, CA 93420 Kelly 1etm/' e, City Clerk - — PO Box 2331 Pismo Beach, CA 93448 APPROVED AS TO FORM: THE HEIGHTS AT VISTA DEL MAR HOMEOWNERS ASSOCIATION,a California non-profit mutual Benefit corporation eather K. Whitham, City Attorney By: o.-, g1014 Jas Blankenship Its: President Date: 11" , 2018 Address: 6674 Monte Road San Luis Obispo, CA 93401 PO Box 2331 Pismo Beach, CA 93448 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 - - 8. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California 1 County of \\-.���C-1)\- -€-QZ J} On Ki v"c\\' Y ,7Ja c before me, -SSS\Com` SCLC\ i IV--t+02-12tic Date Here Insert Name and Title of the Off personally appeared \\ -Q AN . ` yC`C\C-LA;rl Ne(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the ..,...0,..dhah„,m. ../ O JESSICAMATSON laws of the State of California that the foregoing NotaryPublic-California paragraph is true and correct. San Luis Obispo County CoMy Comm.Expires Mar 22,2022 WITNESS my hand and official seal. Signatures L"---- Place Notary Seal and/or Stamp Above Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): 0 Corporate Officer—Title(s): ❑ Partner— 0 Limited 0 General 0 Partner— 0 Limited 0 General ❑ Individual 0 Attorney in Fact 0 Individual 0 Attorney in Fact ❑ Trustee 0 Guardian of Conservator 0 Trustee 0 Guardian of Conservator ❑ Other: 0 Other: Signer is Representing: Signer is Representing: ©2017 National Notary Association 1 i 1 n • r • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California 1 County of Smr- (.vIS c 1 v On 1\ 1 1 ( before me, C-71t N- M O .)0,,\ , Date (�1 Here Insert Name and Title of the Officer --� personally appeared vl�So t IV 1G-+^ QAi\5\A) p Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the GUILLERMOVALDEZ laws of the State of California that the foregoing '' ''- Notary Public—California Z ' Santa Barbara County q paragraph is true and correct. Z- -- , �i Commission k 2186797 � My Comm.Expires Apr 25,2021 WITNESS my hand and official seal. Signature -14 Place Notary Seal and/or Stamp Above Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: u .IP v-. i i Document Date: t Number of Pages. �/�./5 Signer(s) Other Than Named Above. Capacity(ies) Claimed by Signer(s) Signer's Name Signer's Name: ❑ Corporate Officer- Title(s): 0 Corporate Officer-Title(s): ❑ Partner- 0 Limited 0 Gener 0 Partner- 0 Limited 0 General ❑ Individual 0 Atto ey in Fact 0 Individual P2 Attorney in Fact ❑ Trustee 0 Gu dian of Conservator 0 Trustee 0 Guardian of Conservator ❑ Other: ❑ Other: Signer is Representing' Signer is Represe ing: ©2017 National Notary Association M1304-09 (09/17) END OF DOCUMENT