Felton Pump Track: Is Contract Enforceable?

Dear Honorable Board of Supervisors of Santa Cruz County, and Mr. Matt De Young of Santa Cruz Mountains Trail Stewardship:

The Board of Supervisors has approved the Memorandum of Understanding (MOA) between the County and the Santa Cruz Mountain Trail Stewardship (SCMTS). In reading the MOA, it is apparent that “Section IX Indemnification” contains provisions to indemnify both parties against various but different legal situations.

What is not readily apparent in this section is whether either party is specifically indemnified by the other against private or governmental legal action resulting from increased flooding that may occur due to the construction of the proposed pump track within a 100-year floodplain and floodway. The County and SCMTS are fully aware that they are proposing a project that appears not to comply with the Code of Federal Regulations, CFR 60.3(c)(10): “Once FEMA has mapped a floodway, then no development in the floodway can cause increases in the base flood elevation.”

“Section X Miscellaneous Provisions” item (l.) goes on to state that:  “The obligations of this MOA, which by their nature would continue beyond the termination on expiration of the MOA, including without limitation, the obligations regarding Indemnification (Section IX below), shall survive termination or expiration.”

This section seems to state that each party will indemnify the other for the listed legal matters in perpetuity. Is this really what the County and SCMTS want to agree to? Is this perpetual contract really enforceable? (Also, Section X of the contract refers to “Section IX below,” when actually Section IX is above in the contract language.)

Please respond to my concerns.

Very truly,

Stephen D. Homan
Bonny Doon, CA