HomeMy WebLinkAboutC-3055(A) - Green Acres Reclaimed Water - Big Canyon Country Club•
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AUG 1 1 1997 August 11, 1997
CITY COUNCIL AGENDA
nnDMlClI ! ITEM NO. 10
TO: Mayor & Members
FROM: Public Works Department
SUBJECT: ORANGE COUNTY WATER DISTRICT GREEN ACRES
SLURRY SEAL JOINT PROJECT C 30545
RECOMMENDATION:
Authorize a $52,847.50 contribution to the Orange County Water District for the
City's share of the proposed joint slurry seal project.
DISCUSSION:
The Orange County Water District (OCWD) is progressing toward the completion of
the Green Acres Project which will bring reclaimed irrigation water. into Newport
Beach along the route as shown on the attached sketch. Jamboree Road,
Eastbluff Drive, and Santa Barbara Drive will be impacted by the water line
installation. Work currently is being performed on Bristol Street and their
Contractor, Ken Thompson, Inc., will be entering the City limits shortly at Bayview
Place and Bristol Street.
At the time the project was permitted, the City Manager requested that staff explore
the possibility of slurry sealing the entire street widths as a part of the project.
Normally, utility companies in preparing projects of this magnitude will slurry seal or
overlay one half of the street impacted by their work. This slurry seal effort was
originally included in the design plans and specifications, however, because of cost
considerations for the Green Acres Project, it was eliminated as non - specific
project related item.
OCWD's contractor has agreed to a $105,695 price to slurry seal the full width of
Eastbluff Drive and Santa Barbara Drive and the westerly side of Jamboree Road.
Given that the water line project will only impact one half of these streets, OCWD
has requested the City to pay the other half if we want the entire street covered.
The normal cycle for the City's slurry seal program would include these streets in
the next 2 to 3 years. The price received from The OCWD contractor is
comparable to the recently completed work in Fashion Island. Covering the full
street width will provide the community with a uniform looking street and avoid the
appearance that only half the job was completed.
It is recommended that the City contribute to OCWD half the cost of slurry sealing
these streets - $53,847.50. The contribution was reviewed with The Public Works
Committee at their July 25, 1997 meeting. The Committee recommends that the
contribution be made.
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Orange County Water District Green Acres
Slurry Seal Joint Project
August 11, 1997
The funds needed for completing this project are available in the General Fund
under the Capital Project Account No. 7013- C5100018, Street, Alley, Bikeway
Slurry Programs.
Staff recommends approval.
Respectfully submitted,
PUBLIC WORKS DEPARTMENT
Don Webb, Director
By: 1
Mi hael J. Sinacori, P.E.
Utilities Engineer
MJS:sdi
Attachments: Exhibit "A" - Letter from Ken Thomposon regarding slurry seal costs.
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N T. S.
EXj7 TIJj ; GREEN ACRES F'F.'UJD'
PHASE I PIPELINE
PIPELINE ALIGNMENT
12 -INCH
PIPELINE
is
24 -INCH PIPELINE
CREEK CROSSING
(18 -INCH PIPELINE)
IRWD PLANNED
24 -INCH PIPELINE
24 -INCH PIPELINE
16 -INCH PIPELINE
CONTRACT NO. GA -97 -1
NEWPORT BEACH PIPELINE
ASL Consulting Engineers I ORANGE COUNTY WATER DISTRICT
GREEN ACRES PROJECT
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TO: Mayor & Members of the City Council
FROM: Public Works Department
August 28, 1995
CITY COUNCIL AGENDA
ITEM NO. 6
SUBJECT: PROFESSIONAL SERVICES AGREEMENT (CONTRACT NO. C- 3055 -B)
USER "ON -SITE" RETROFIT DESIGN, ASL CONSULTING ENGINEERS
GREEN ACRES RECLAIMED WATER PROJECT
RECOMMENDATIONS:
If desired, authorize the Mayor and City Clerk to execute a
Professional Services Agreement on Behalf of the City, with
ASL Consulting Engineers to design and prepare detailed
plans and specifications for construction of "On- Site" User
Reclaimed Water Retrofits at various City sites for a not to
exceed fee of $41,500.
GREEN ACRES RECLAIMED WATER PROJECT OVERVIEW:
The Orange County Water District (OCWD) is the groundwater
basin manager for most of northern Orange County. Approximately 70 percent
of the northern and central Orange County Cities and Water Districts pump
water from wells in this basin. In an effort to conserve the water supply and
protect the groundwater basin, OCWD initiated the Green Acres Reclaimed
Water Project (refer to Exhibit "A" attached). OCWD is a national leader in
reclamation and serves as a model agency for other drought- stricken
communities.
In 1985, OCWD requested the City of Newport Beach to consider
potential expansion of the Green Acres Project. After almost ten years of study
and design, the expansion into Newport Beach now appears imminent. It is
estimated that by Summer 1998, Newport Beach could have a fully operational
reclaimed water system.
The total OCWD Green Acres Project costs are approximately 50
million dollars. Most of the costs are being funded by OCWD and a low -
interest loan from the State of California, authorized by the State Water
Resource Control Board. On -site retrofitting for each of the potential reclaimed
water users, (see attached Exhibit "B" and "C "), will be jointly funded by OCWD
and the reclaimed water users. The cost of the reclaimed water for each user
will be set by agreement at 80 percent of current potable water cost.
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USER "ON- SITE" RETROFITS:
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','City "On- Site" Retrofit Design Contract
Green Acres Reclaimed Water Project
August 28'", 1995
The "On- Site" retrofitting of the existing water systems for planned
reclaimed water use i� necessary to separate the existing potable water system
from the areas which twill be converted to reclaimed water use. Each City site
will be investigated and approval will be sought from the State Health
Department for the planned "On- Site" systems for use of the reclaimed water
use. No system will be allowed to be constructed without the approval of the
Health Department.
rY 9MOIG MIRARcc AZALV/[GIP&3
The proposed Professional Services Agreement with ASL Consulting
Engineers provides for: preliminary investigations of each site: preparation of a
preliminary design report; preparation of detailed specifications; preparation of
detailed construction plans; compilation of contract documents suitable for
bidding and awarding a contract for construction. A copy of the professional
services agreement is attached as Exhibit "D ". ASL Consulting Engineers is the
same firm that is designing the Green Acres Reclaimed Water Transmission
Mains for OCWD, see attached Exhibit "B" for the limits of the design effort.
The preliminary design for these transmission facilities has been completed.
Mapping and design efforts for the transmission mains will require
coordination between the OCWD staff and the City. Staff believes that it would
be in the City's best interest to utilize this firm for its "On- Site" retrofit designs.
If approved, the design effort can commence immediately. The
construction contracts for the various "On- Site" retrofits will be coordinated
with the General Services and Community Services Department to minimize
impacts.
STAFF RECOMMENDATION & FUNDING:
Funds are available for the design contract in the Water Enterprise
Fund under Capital Projects Account No, 7501- C550075. Staff recommends
approval for the Mayor and City Clerk to execute the Professional Services
Agreement on behalf of the City.
Respectfully submitted,
CLIC WORKS DEPARTMENT
Don Webb, Director
MJS:sdi
By: ,cP
Mi hael J. Sinacori, P.E.
(Acting) Utilities Manager
Attachments: Exhibit "A ", Green Acres Project Service Area.
Exhibit "B ", Potential Users in Newport Beach.
Exhibit "C ", Summary of Probable Potential User Demands
Exhibit "D ", Professional Services Agreement
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N.T.S.
;YluICIZ10
EAST13WFF MIDDLE
SCHOOL (SOCCER
FIELD ONLY)
EASTBLUFF PARK
—
EASTBLUFF COMMUNITY-
GREENBELT (3 METERS)
CORONA DEL MAR—
HIGH SCHOOL
(ATHLETIC FIELDS
ONLY)
ST. MARK'S CHURCH
NEWPORT BACKBAY
GOLF COURSE
NEWPORT
COUNTRY
THE GRANVILLE APARTMENTS
EXISTING GREEN ACRES PROJECT -
PHASE I PIPELINE
9y
�F
r
PIPELINE ALIGNMENT
JAMBOREE MEDIANS —
11 METERS (TYP.)
BONITA CREEK
PARK
EAST SLOPE OF
EASTBLUFF DRIVE
f :T:b�3 ^C�Z�I�7-IJ:13
CANYON GOLF COURSE
METERS)
MANAGEMENT
FIGURE NO. 1
POTENTIAL USERS
ASL Consulting Engineers ORANGE COUNTY WATER DISTRICT
GREEN ACRES PROJECT
E%04, go T 5
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FGZEEMENT
PROFESSIONAL SERVICES •
FOR
USER "ON- SITE" RETROFIT DESIGN AT VARIOUS CITY OWNED SITES
AS A PART OF THE
GREEN ACRES RECLAIMED WATER PROJECT
THIS AGREEMENT is made and entered into this day of August,
1995, by and between the City of Newport Beach, a municipal Corporation, hereinafter
referred to as "CITY ", and ASL Consulting Engineers, a California Corporation, hereinafter
referred to as "CONSULTANT ".
RECITALS:
A. City will begin receiving reclaimed water for irrigation from the Orange County
Water District, hereinafter referred to as "OCWD" for the purpose of supplementing
and conserving the supply of potable water of OCWD, and;
B. City and OCWD entered into an agreement entitled, "Agreement Between OCWD •
and City Regarding Distribution and Sale of Green Acres Project Water ", dated
January 16,1991, and;
C. As part of that agreement, City is required to modify and convert the on -site
irrigation systems at specific City-owned parks and landscaped areas within the
Green Acres Reclaimed Water Project service area, and;
D. Implementation of the On -Site User Irrigation System Retrofit at four (4) sites within
the City: Eastbluff Park, Eastbluff Middle School (soccer field only), Bayview Park
and Medians/ Parkways on Jamboree Road, as well as various other sites under
investigation, collectively referred to as "Project ". Such work necessitates the
services of a qualified professional engineering design consultant with irrigation
system and reclaimed water system experience, and;
E. City has solicited and received a proposal from Consultant for Project design, as •
well as to provide certain other essential professional services, outlined herein
below, and;
F. City has reviewed the previous experience and has evaluated the expertise of
Consultant and desires to accept the proposal submitted by Consultant, and;
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NOW THEREFORE, in consideration of the foregoing, it is mutually agreed and
• understood that:
GENERAL
A. City engages Consultant to perform the described services for the consideration
hereinafter stated.
B. Consultant agrees to perform the described services in accord with the terms and
conditions hereinafter set forth.
C. Consultant agrees that all services required hereunder shall be performed under
his direct supervision, and all personnel engaged in the work shall be fully
qualified and shall be authorized or permitted under State and local law to
perform such services. Consultant shall not sublet, transfer or assign any work
except as otherwise provided for herein or as authorized in advance by the City.
2. SERVICES TO BE PERFORMED BY CONSULTANT
Consultant shall provide the following listed professional services to City.
• A. Consultant shall provide the necessary services to complete the defined tasks
associated with the design phase of the Project. Those tasks include the following:
(1.) Preliminary Investigation Phase (Nine Users)
a. Data Gathering
Obtain copies of existing on -site irrigation, plumbing and fire service
plans for each of the users.
ii. Obtain Assessor maps covering Eastbluff Park and Bayview Park.
b. User Site Visits
L Meet with City, user and plumbing /irrigation maintenance personnel.
ii. Collect information on pressure, quantity needs, and user's proposed
mode of operation with reclaimed water.
iii. Locate existing meters, backflow preventers and fire protection
systems.
iv. Operate existing sprinkler systems (median/parkway users).
c. Preliminary Identification of On -Site Modifications
Identify on -site modifications required to accommodate reclaimed water
service. Items to be investigated include:
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• Existing backflow protection on the domestic water service (domestic
and fire service connections) •
• Potential cross - connections between on -site irrigation, domestic and
fire service mains
• Identification of reclaimed water service area
• Location of drinking fountains, quick couplers and hose bibs
• Overspray /ponding potential
• Common plumbing /irrigation pipe trenches
• Runoff potential
d. Preliminary Recommendation for Reclaimed Water Meter
i. Locate the new reclaimed water meter to minimize proposed on -site
piping.
ii. Evaluate alignments for the proposed reclaimed water service line
from the meter to the existing irrigation backbone distribution system.
iii. Preliminary sizing of new reclaimed water meter to correspond with
proposed reclaimed water delivery schedule.
iv. Investigate the feasibility of using the existing domestic water service •
and meter for reclaimed water and installing a smaller new domestic
service and meter for the domestic water needs.
v. Determine if pressure reducing facilities will be required.
e. Preliminary Cost Estimate
i. Prepare preliminary cost estimate, separated into materials and labor,
for the user connection facilities and the on -site modifications.
ii. Perform a preliminary analysis on the cost /benefit of using reclaimed
water.
(2.) Preliminary Design (Four Users)
a. Verify requirements for on -site retrofit
i. Meet on -site with County Health Agency, the City and the User
Maintenance Superintendent to confirm the on -site modifications and
the proposed service connection facilities (IRWD will need to attend
meeting at Bayview Park). 0
ii. Finalize recommended facilities for reclaimed water meter.
iii. Final determination if pressure reducing facilities will be required.
iv. Update preliminary cost estimates to include any new requirements.
b. Prepare preliminary retrofit drawings
• i. Obtain aerial map for the site plan (scale will depend on the size of the
user). The aerial mapping will be done in conjunction with the aerial
mapping being done for the design of the Green Acres Project - Phase
II Pipeline Extension into Newport Beach.
ii. Using aerial photo, show the following:
• Existing off -site domestic water lines
• Proposed off -site reclaimed water line
• Existing domestic water meter and backflow device
• Existing on -site plumbing (domestic) water lines
• Existing on -site irrigation lines (constant pressure)
• Existing irrigation control valves and controllers
• Existing drinking fountains, quick couplers and hose bibs
• Proposed reclaimed water service area
iii. Prepare working sketches of the following:
• • Plan view of new reclaimed water meter (or new smaller domestic
water service)
• Pressure reducer facilities
• Meter vault facility
• New backflow preventer assembly on the domestic water service
connection
• Modifications to backflow preventer assembly on the fire system
service connection
• Removal of existing backflow preventer assembly on the irrigation
system
• Connection of reclaimed water meter to the existing irrigation
system
• Capping of required potable water lines
• Changing of quick coupling valves
• Modify /relocate existing pipelines to obtain reclaimed
water /domestic water separation requirements (i.e., common pipe
trenches)
• • Reclaimed water identification (signs, warning tags and labels)
c. Submit 50% design review consisting of as a minimum, preliminary title
sheet, second sheet, aerial site plans, working sketches and a cost estimate
to the City and the user.
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(3.) Final Design
a. Finalize Design Concepts: Present final design concepts at a project •
meeting with the City to assure agreement in scope before proceeding
with final plans. Design concepts shall include the following as a
minimum:
• City plan review comments on 50% Design Review
• User connection facilities including size of meter and pressure
reducing facilities
• Reclaimed water service line alignment
• Reclaimed water identification
• Construction phasing
b. Finalize Construction Plans. At this time we envision the construction
plan set will contain the following drawings:
• Title Sheet (1 sheet)
• Second Sheet (including vicinity map, location map general notes and
construction notes) (1 sheet)
• Aerial Photo - Site Plans
Eastbluff Park (scale: 1" = 40') (2 sheets)
Eastbluff Middle School (scale: 1" = 40') (1 sheet)
Bayview Park (scale: 1" = 40') (1 sheet)
Medians /Parkway on Jamboree (scale: 1" = 20') (3 sheets)
• Meter and Pressure Reducing Valve details (1 sheet)
• Backflow modifications and details (2 sheets)
• R.W. Identification and Miscellaneous details (1 sheet)
All drawings will be prepared in AUTOCAD (except for the aerial photo
site plans) and shall be plotted on City standard mylar sheets.
c. Prepare detailed special provisions, bid documents and quantity
estimates. The special provisions and contract bid documents will be
prepared in accord with the requirements of the City's design criteria.
d. Process the plans through OCWD, School District, IRWD and the County
Health Department for their review and approval. Preliminary plans will
be submitted to OCWD for their review and comments. Plans and special
provisions will be submitted to OCWD, School District and the County
Health Department for their review and approval as part of the 90%
Design Review.
e. Submit 90% Design Review consisting of, as a minimum, complete plans,
a refined cost estimate and preliminary special provisions. All of the
City's 50% design review comments will be addressed.
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f. Submit 100% Design Review consisting of, as a minimum, final plans
• reflecting 90% design review corrections; a complete and detailed cost
estimate on the contractor's bid proposal form (with cost estimate back up
detail); complete special provisions, contract documents and any
appendices.
g. Submit Final Approval Review consisting of final plans reflecting 100%
design review corrections; complete special provisions, contract
documents and any appendices.
3. DUTIES OF THE CITY
In
order to assist Consultant in the execution of his responsibilities under this
Agreement, City agrees to provide the following:
A.
Background information, reports, on -site irrigation and plumbing plans, contracts,
specifications, proposals or agreements as may be available or are in existence,
which may be germane to the proper preparation and completion of the
Consultant's defined duties.
B.
Assistance in operating the City's existing irrigation systems.
C.
Obtain permission from the user to allow the Contractor to construct on -site
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modifications on user's property.
D.
Assist Consultant with interpretation of City standards and design criteria. Meet
with Consultant as necessary to provide input or direction on matters pertaining to
completion of specifications and final construction plans.
E.
Provide blueprinting, CARD plotting, copying and other services through City's
reproduction company for each of the required submittals and for bidding
purposes. All other reproduction will be ASL's responsibility.
F.
Prepare, distribute and mail all bid documents and addendum.
4. Additional Work Items Not Included in Above Scope of Services
A.
Construction Services including providing assistance to the City during
advertisement and bidding period, attendance at pre -bid meeting and
preconstruction conference, review shop drawing submittals, monitoring of
construction progress and preparation of "as- built" drawings.
B.
Assisting the City in developing test procedures with the State and local Health
Departments for the proposed retrofit.
C.
Assistance during the initial survey prior to activation, the cross - connection survey
and the coverage test.
D.
Preparation of any required easements for service connections or lines.
5. PROJECT TEAM
ASL Consulting Engineers has assembled a project team which is comprised of Tom •
Epperson, as Project Manager and Steve Tedesco, as the Principal -in- Charge. Both
team members have extensive experience in the reclaimed water industry. They are
familiar with the Green Acres Project, both with the OCWD and the City.
6. TIME OF COMPLETION
A. Consultant shall commence work immediately upon receipt of written notice to
proceed. Work as required herein, shall be completed in a diligent and efficient
manner to the execution of its completion. All work, with the exception of the
construction phase services required to advertise for construction shall be
completed 120 calendar days from inception of Project.
B. The term of this Agreement shall expire thirty (30) calendar days after the date the
Project is completed and accepted by City. It is agreed and understood by both
parties, that this is sufficient time to complete all such activities and tasks
associated with the Project, including "as- built" drawing preparation.
C. Construction Schedule:
• Preliminary Investigation Phase
30 calendar days
• Preliminary Design
Submit 50% Design Review
20 calendar days
City Review
15 calendar days
• Final Design
Submit 90% Design Review
20 calendar days
City Review
7 calendar days
Submit 100% Design Review
14 calendar days
City Review
7 calendar days
• Submit Final Design Review
7 calendar days
OWNERSHIP OF DOCUMENTS
A. Original reports, drawings and other deliverable documents to be provided by
Consultant under this Agreement shall become the exclusive property of City and
may be reproduced as deemed necessary by City or its duly authorized
representative. However, any use of completed deliverables or documents for
purposes other than for this Project, or any use of incomplete documents, shall be
at City's sole risk, and City shall indemnify Consultant for any damages incurred
as a result of such use.
B. No report, drawing, map, document or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Consultant without prior written approval by
City, unless required by subpoena.
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C. Consultant may reserve the right to publish materials or reports related to the
• work performed or data collected under the provisions of this Agreement. The
right to publish shall be at the sole discretion of the City and written permission
must be obtained by Consultant from City on a case by case basis. Blanket
publishing approval shall not be granted.
D. Consultant is granted permission to show prospective clients reports and data
which have been accepted by City as prepared under this Agreement.
8. RIGHT OF TERMINATION -
A. City reserves the right to terminate this Agreement without cause at any time by
giving Consultant five (5) business days prior written notice. Notice shall be
deemed served when delivered personally or upon deposit in the United States
mail, postage prepaid, addressed to the Consultant's business office at One Jenner
Street, Suite 200, Irvine, California, 92718.
B. Consultant may terminate this Agreement after ten (10) days' written notice from
Consultant to City notifying City of it's substantial failure to perform in accord
with the terms of this Agreement, if , City has not corrected it's non - performance
within that time.
• C. In the event of termination due to errors, omissions, or negligence of Consultant,
City shall be relieved of any obligation to compensate Consultant for that portion
of work directly affected by such errors, omissions, or negligence of Consultant. If
this Agreement is terminated for any other reason, City agrees to compensate
Consultant for the actual services performed up to the effective date of the "Notice
of Termination ", on the basis of the fee schedule contained herein.
9. SUBCONTRACTORS & ASSIGNMENT
A. None of the services included in this Agreement shall be assigned, transferred,
contracted or subcontracted without prior written approval of City.
B. Neither Consultant nor City shall assign or transfer any interest in this Agreement,
whether by assignment or novation, without the prior written consent of the other
party; provided, however, that claims for money due or to become due Consultant
from City under this Agreement may be assigned to a bank, trust company or
other financial institution, or to a trustee in bankruptcy, without such approval.
Notice of any such assignment or transfer shall be promptly furnished to City.
10. PAYMENT & FEE SCHEDULE
• A. In consideration for the specified services, City hereby agrees to compensate
Consultant on an hourly basis as set forth below in the PAYMENT & FEE
SCHEDULE. In no event shall said amount be greater than the amount of forty -
one thousand five hundred dollars ($41,500), except as otherwise provided for
herein below.
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B. Payment & Fee Schedule
personnel
•
hourly rates
Technician.............................................. ...............................
48.00
Draftsperson........................................... ...............................
60.00
Designer Draftsperson .......................... ...............................
65.00
Designer /CAD Operator/ Engineer I . ...............................
75.00
EngineerII and III ................................. ...............................
80.00
Senior Engineer /Project Coordinator ...............................
88.00
Project Engineer /Senior Project Coordinator ..................
98.00
Project Manager /Managing Engineer ..............................
115.00
Sr. Project Manager /Sr. Managing Engineer ...................
125.00
Principal.................................................. ...............................
135.00
Senior Construction Inspector ............. ...............................
62.00
Construction Inspector ......................... ...............................
56.00
Word Processor /Administrative Support ........................
45.00
Mapping Coordinator ........................... ...............................
78.00
Planner.................................................... ...............................
88.00
Chief of Surveys .................................... ...............................
95.00
Two -Man Survey Party ........................ ...............................
150.00
Three-Man Survey Party ...................... ...............................
200.00
Other Supplies and Outside Services ........ Actual Cost Plus 10%
C. The contract amount shall be paid to Consultant in monthly partial payments
based on the amount of hours worked and expenses incurred during each monthly
pay period based on the actual hours of labor expended as determined by the
Project Manager for City.
D. In addition to the fixed, not -to- exceed fee, City agrees to reimburse Consultant for
the actual cost (plus 10 %) for all outside expenses, including those for:
reproduction for copies of plans, reports and related documents, material costs
authorized in advance by the Project Manager for City, and other reasonable
expenses, where such costs have been advanced by Consultant and approved in
advance by City.
(1.) Consultant shall provide written records (originals) of all expenses incurred,
and shall report all hours expended in the performance of his duties and tasks
on a monthly basis. City agrees to pay "Consultant" within thirty (30)
calendar days receipt of said records and hourly summary.
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(2.) Consultant shall not be compensated for use of Consultant's equipment, •
hardware, software materials, reproduction or mileage. These costs are non -
compensable. Time expended by Consultant's personnel on such equipment
shall be paid on the basis of the "FEE SCHEDULE" herein above.
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11. ADDITIONAL SERVICES
• No change in character, extent, or duration of the work to be performed by Consultant
shall be made without prior written approval from City. In consideration for
performance of additional services authorized by City in writing, City hereby agrees
to compensate Consultant an amount based upon the hourly rate as submitted to City
in the "FEE SCHEDULE ", except that an increase in the total compensation exceeding
five thousand dollars ($5,000) shall require that an amended Agreement for such
additional services be executed by Consultant and City.
12. RECORDS
A. Consultant shall maintain complete and accurate records with respect to costs,
expenses, receipts and other such information required by City that relate to the
performance of the services specified under this Agreement. All such records shall
be maintained in accord with generally accepted accounting principles and shall
be clearly identified and readily accessible.
B. Consultant shall provide free access to the representatives of City or its designees
at all proper times upon reasonable notice to Consultant to such books and
records, and gives City the right to examine and audit same, and make transcripts
• therefrom as deemed necessary at City's cost, and allow inspection of all work,
data, documents, proceedings and activities related to this Agreement.
13. INSURANCE
A. On or before the date of execution of this Agreement, Consultant shall furnish City
with completed certificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance policies. Consultant shall use
the City's Insurance Certificate form for endorsement of all policies of insurance.
The certificates do not limit Consultant's indemnification, and also contain
substantially the following statement: "The insurance covered by this certificate
may not be canceled, non - renewed, except after thirty (30) days' written notice has
been received by City. Coverage may not be reduced or otherwise materially
altered without the same advance notice to City of such alteration.
B. Consultant shall maintain in force at all times during the performance of this
Agreement, policies of insurance required by this Agreement; and said policies of
insurance shall be secured from an insurance company assigned Policyholders'
Rating of "A" (or higher) and Financial Size Category "VII" (or larger) in accord
with an industry-wide standard and shall be licensed to do business in the State of
• California, unless City waives this requirement.
(1.) An appropriate industry-wide insurance rating standard shall be deemed
"Best's Key Rating Guide ", latest edition.
C. Consultant shall maintain the following minimum coverages:
Liability Insurance
General liability coverage shall be provided in the following minimum limits:
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Category Amount
Bodily Injury $ 1,000,000 each occurrence •
$ 1,000,000 aggregate
Property Damage $ 1,000,000 each occurrence
$ 1,000,000 aggregate
Aggregate Insurance
A combined single limit policy with aggregate limits in the amount of one million
dollars ($1,000,000) will be considered equivalent to the required minimum limits.
Errors & Omissions Insurance
Errors & Omissions coverage shall be provided in the amount of one million
dollars ($1,000,000).
D. Subrogation Waiver
In the event of loss or claim of loss due to any of the perils for which it has agreed
to provide general liability insurance, Consultant shall look solely to its insurance
for recovery. Consultant hereby grants to City, on behalf of any general liability
insurer providing insurance to either Consultant or City with respect to the
services of Consultant, a waiver of any right of subrogation which any such
insurer of said Consultant may acquire against City by virtue of the payment of
any loss under such insurance.
E. Additional Insured
City, its City Council, boards and commissions, officers, servants and employees
shall be named as an additional insured under all insurance policies required
under this Agreement, except Errors & Omissions Insurance. The naming of an
additional insured shall not affect any recovery to which such additional insured
would be entitled under this policy if not named as such additional insured; and
an additional insured named herein shall not be liable for any premium or expense
of any nature on this policy or any extension thereof. Any other insurance held by
an additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this policy. Proceeds from any
such policy or policies shall be payable to City primarily, and to Consultant
secondarily, if necessary.
14. WAIVER •
A waiver by City or Consultant of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant, or condition contained herein whether of the same
or different character.
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15. COST OF LITIGATION
• If any legal action is necessary to enforce any provision hereof or for damages by
reason of an alleged breach of any provisions of this Agreement, the prevailing party
shall be entitled to receive from the losing party all costs and expenses in such amount
as the court may adjudge to be reasonable costs of litigation.
16. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereof. Any modification of this
Agreement will be effective only by written execution signed by both City and
Consultant.
17. HOLD HARMLESS
Consultant shall indemnify and hold harmless, City, its City Council, boards and
commissions, officers, and employees from and against any and all loss, damages,
• liability, claims, suits, costs and expenses, whatsoever, including reasonable costs of
litigation, arising from Consultant's negligent acts, errors or omissions, in the
performance of services hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on •
the first date above written:
APPROVED AS TO FORM: City of Newport Beach,
a municipal corporation
Robert Burnham
City Attorney
ATTEST:
Wanda Raggio
City Clerk
Address & Telephone:
John Hedges, Mayor
"City"
•
ASL Consulting Engineers
a California Corporation
Steve Tedesco, Principal
"Consultant"
•
City of Newport Beach ASL Consulting Engineers.
3300 Newport Boulevard One Jenner Street
Post Office Box 1768 Irvine, California 92718
Newport Beach, California 92658 -8915 (714)727 -7099 (714)727 -7097 fax
(714)644 -3011 (714)646 -5204 fax
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AGENDA ITEM NO. 7
CITY OF NEWPORT BEACH
Office of the City Manager
December 10, 1996
DEC 9 ">
TO: Honorable Mayor and Members of the City Council
FROM: Kevin J. Murphy, City Manager A C _3055
SUBJECT:END USER AGREEMENTS
BACKGROUND
In July, 1996 the City entered into an Agreement (Agreement) with the Orange
County Water District (OCWD) and the Irvine Ranch Water District (IRWD) to
construct an intertie pipeline project which would facilitate the provision of
excess wintertime reclaimed water by IRWD to OCWD for their current
reclaimed water program. The construction of the intertie will permit OCWD in
the wintertime to close its reclaimed water plant and IRWD to sell its excess
wintertime flows rather than pay the County Sanitation Districts to treat and
discharge the wastewater off the coast. In addition, and most importantly to
Newport Beach, the construction of the intertie pursuant to the Agreement is an
important component of preventing the discharge of IRWD's reclaimed water
into San Diego Creek and Upper Newport Bay. Without the intertie project,
IRWD is today legally entitled by all regulatory agencies to discharge into the
Creek and Upper Bay.
The Agreement (attached) in Section 1(E) required the City by September 30,
1996 to enter into end user agreements with large water users in the City to
guarantee that the project would actually be constructed and would be
financially feasible for OCWD. The total costs to the parties to construct the
intertie project are $6.1 million for OCWD and $2.4 million for IRWD. As part of
the Agreement, the City was required to contribute $500,000 towards the costs
of end user retrofits (Section 1(E)(2)). The retrofits were projected to cost the
large water users $1.1 million to modify their irrigation systems in order to utilize
the reclaimed water.
At the September 23, 1996 City Council meeting the Council approved end
user agreements with Newport-Mesa Unified School District for the Corona del
Mar High School athletic fields, the Bluffs Homeowners Association for their
landscaped areas, the City for Bonita Creek Park, and authorized the City
Manager to enter into agreements with Big Canyon Country Club (BCCC) and
Newport Beach Country Club (NBCC) upon resolution of certain key elements
of the negotiated agreements. The City entered into agreements with all parties
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by the September 3.0, 1996 deadline; however, provisions within the BCCC and
NBCC agreements required further negotiation and agreement on the amount
of financial assistance within sixty (60) days or November 1, 1996. Negotiations
on the financial assistance to be provided to the two golf courses towards their
costs of retrofitting their irrigation system have been on -going and due to the
golf courses use of irrigation consultants, the sixty (60) day deadline has been
extended twice. A third Amended and Restated Agreement (attached) has been
drafted with a few minor revisions, but most importantly an extension until
December 18th for the parties to each have their respective Boards approve an
agreement on the financial assistance for the two golf courses.
DISCUSSION
Attached for information is a copy of a spreadsheet identifying the costs and
financial assistance to be provided to the two golf courses pursuant to our
negotiations. For BCCC the OCWD will provide a grant of $500,000 and the
City a grant of $108,000 towards the cost of retrofitting the golf course with dual
plumbing for potable and reclaimed water. In addition, the City will pay for the
construction of a new pump station at an estimated cost of $100,000, the on-
going maintenance of the pump station and the energy costs associated with
the pump station for ten (10) years. BCCC will pay an estimated $1.1 million
towards the costs of replacing their irrigation system. .
The NBCC replaced their irrigation system six years ago and put in place most
of the elements necessary for a dual plumbed reclaimed irrigation system. In
NBCC's end user agreement there is a most favored nation provision which
requires that they be treated equally to BCCC. To that end, the proposed
agreement provides that OCWD would grant to NBCC $200,000, the City grant
$41,000 and City payment for a pump station ($70,000) and the energy costs for
ten years. The energy costs over ten years for both courses is estimated to total
$150,000.
Thus, the total City financial assistance to facilitate the intertie project is:
BCCC
City Grant $108,000
Pump Station 100,000
Energy Cost 100.000
$308,000
MO. 00
City Grant $41,000
Pump Station 70,000
Energy Cost 50.000 -
$161,000
TOTAL COST $469,000
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CONCLUSION AND RECOMMENDATION
The City Council in July approved the three party settlement agreement aimed
at preventing discharge of reclaimed water into San Diego Creek and Upper
Newport Bay. To achieve this end, the intertie project must be completed and in
place by October 1, 1997 and end user agreements must be in place so that
IRWD and OCWD are assured that there are actual major users of the reclaimed
water. To that end it is recommended that the City Council:
Ratify the action of the City Manager in signing the Third Amended and
Restated End User Agreements with NBCC and BCCC; and
2. Approve the Agreements between OCWD, the City, BCCC, and NBCC
regarding retrofitting irrigation facilities and cost sharing.
AGREEMENT
This Agreement is entered into this 17th day of July , 1996, by and between
the Orange County Water District (OCWD) , the Irvine Ranch Water District (IRWD), and
the City of Newport Beach (City).
Recitals:
A. The Parties support projects which beneficially use Reclaimed Water (for
purposes of this Agreement, the term "Reclaimed Water" generally means water which
fully satisfies Title 22 standards), without adversely impacting the environment and which
are cost effective or have positive cost benefit ratios;
B. IRWD is the proponent of the Wetlands Water Supply Project (WWSP)
which consists of a two (2) year Demonstration Phase (Demonstration Phase) and a
subsequent Permanent Phase (Permanent Phase). The Demonstration Phase and the
Permanent Phase each contemplate a winter (October 1 through March 31) discharge of
a maximum of five (5) million gallons per day (mgd) of Reclaimed Water into waterfowl
ponds (Duck Ponds) for a seven (7) day detention period with subsequent discharge into
San Diego Creek and a summertime San Diego Creek "low flow" diversion component;
C. IRWD's implementation of WWSP will achieve the following objectives
(collectively referred to as Project Objectives):
1. Provide a source of water to irrigate the Duck Ponds and marsh mitigation
areas (MMA's) consistent with the WWSP Environmental Impact Report (EIR) and
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OCWD DOC. RTAR NO. 3 1161
IRWD's obligations pursuant to the Grant Deed from The Irvine Company (TIC) to IRWD
dated December 28th, 1995.
2. Use Reclaimed Water for beneficial purposes.
3. Reduce the amount of nutrients flowing into Newport Bay during the
summer.
4. Modify the amount of contributions to the County Sanitation District of
Orange County ( CSDOC) to more closely correspond with actual IRWD usage of CSDOC
facilities.
5. Provide data relative to water quality and existing flora and fauna in
Newport Bay that would be useful to the Santa Ana Regional Water Quality Control Board
(SARWQCB) in setting standards pursuant to the Clean Water Act to protect and
• enhance bay water quality.
D. On July 1, 1996, SARWQCB approved Orders 96 -2 (the Permit) and 96 -3
which authorized IRWD to implement WWSP subject to certain conditions and
restrictions,
E. _ City has been actively seeking measures which would allow the scientific
community to better evaluate the potential impacts of WWSP and alleviate concerns
expressed by certain members of the public and the scientific community about possible
impacts of WWSP on Newport Bay, without interfering with IRWD's ability to achieve all or
substantially all of the Project Objectives;
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F. The Parties have identified a series of actions, projects, and permits (Basic
Integrated Reuse Project) pursuant to which some of the Reclaimed Water otherwise •
used in conjunction with WWSP would be transmitted to OCWD for beneficial use or
lawful disposal.
G. IRWD and City have identified additional actions or projects which, if
implemented, could achieve Project Objectives on an interim basis, and possibly on a
permanent basis, with discharge reductions or no discharge of Reclaimed Water into San
Diego Creek or Newport Bay
H. The Parties desire to establish the terms and conditions pursuant to which
they are willing to implement those components of the Basic Integrated Reuse Project,
modify the amount of Reclaimed Water to be discharged pursuant to the Permit, establish
the criteria that must be satisfied to preclude discharge of Reclaimed Water pursuant to .
the Permit for the period from October 1, 1996 to March 31, 1997 and to identify the
additional issues that must be resolved to achieve, or possibly exceed, Project Objectives
without Reclaimed Water discharges.
1. BASIC INTEGRATED REUSE PROJECT:
The Basic Integrated Reuse Project consists of the components specified in this
Section. The Parties shall perform in accordance with their respective obligations
provided all conditions precedent have been satisfied.
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A. GREEN ACRES PHASE II (GAP II). GAP II is a water pipeline with a
• nominal capacity of 7.8 mgd to be constructed from the current terminus of OCWD's
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"Phase I" facility to the point of intersection with the Intertie as determined in the ASL
Study and then extended to Newport Beach to serve End - users. OCWD shall pay the
entire cost of GAP II. OCWD shall commence the design of GAP II when City has
contributed $500,000 toward End -user retrofits which will increase the cost - benefit ratio of
GAP II to 1.5 or more, and shall commence construction of GAP II when City has
complied with its obligation to obtain End -user Agreements;
B. INTERTIE. The Intertie is a water pipeline with a nominal capacity of 7.8
mgd to be constructed between the Michelson Water Reclamation Plant (MWRP) and
GAP II. IRWD shall pay the entire cost of designing and constructing the Intertie. IRWD
shall commence the design of the Intertie when City has contributed $500,000 to OCWD
for GAP II and shall authorize OCWD to commence construction of the Intertie when City
has complied with its obligation to obtain End -user Agreements.
C. OCWD FLOW ACCEPTANCE COMMITMENTS. OCWD shall accept at
least 4.6 mgd, and up to 7.8 mgd, of Reclaimed Water from IRWD (the additional 3.2 mgd
is sometimes referred to as Excess Flows) during the period from October 1 through
March 31. These commitments are subject to the following conditions:
(1) Completion of GAP If and the Intertie;
(2) The execution of a written agreement between CSDOC and OCWD
pursuant to which CSDOC commits to accept from OCWD at least 4.2 mgd of Reclaimed
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Water during the period from October 1 through March 31 for a period of fifteen (15)
years, and to pay OCWD for the Reclaimed Water at a rate per acre foot equal to
OCWD's cost to treat secondary water to a tertiary standard;
(3) IRWD's commitment to supply 4.6 mgd of Reclaimed Water on a
continuous basis for the fifteen (15) year term of this Agreement;
(4) IRWD's commitment to supply a total of 7.8 mgd of Reclaimed Water (the
4.6 mgd described in 1.C(3) and an additional 3.2 mgd) on a basis to permit peaking by
OCWD up to 7.8 mgd for up to fifteen percent (15 %) of any twenty -four (24) hour period
for the fifteen (15) year term of this Agreement;
( 5) IRWD's commitment to sell at least 4.6 mgd of Reclaimed Water for no
more than fifty percent (50 %) of the price CSDOC pays OCWD for the Reclaimed Water
and to receive no consideration for any Reclaimed Water in excess of 4.6 mgd except to
the extent that OCWD receives consideration for the sale of some or all of the Excess
Flows to any third party and, as appropriate, the framework for determining that
consideration;
(6) - IRWD's commitment to resolve, in good faith, issues related to water
subsidies for Reclaimed Water, and Reclaimed Water transmission rates during peak
period of demand; and
D. IRWD's FLOW TRANSMISSION COMMITMENTS. IRWD shall transmit at
least 4.6 mgd of Reclaimed Water to OCWD during the period from October 1 through
March 31 subject to the following:
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(1) Completion of GAP II and the Intertie;
• (2) Satisfaction of the conditions precedent to OCWD's Flow
Acceptance Commitments;
(3) OCWD's payment for at least 4.6 mgd of Reclaimed Water at a rate
not to exceed fifty percent (50 %) of the price CSDOC pays OCWD for the Reclaimed
Water,
E. CITY COMMITMENTS. City commits to do the following;
(1) Obtain fully executed End -user Agreements with Major Purchasers
of Reclaimed Water within the corporate limits of City (Big Canyon Country Club and
Newport Beach Country Club are among the End -users considered to be Major
Purchasers and agreements with them are essential). City shall use its best efforts to
• obtain these agreements on or before October 1, 1996. OCWD and City shall amend the
Green Acres Agreement to allow for the sale of Reclaimed Water above the current price
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ceiling.
(2) City shall contribute $500,000 towards End -user retrofits which will
increase the cost benefit ratio of GAP II to 1.5 or more. IRWD will loan City the $500,000
at a rate of interest equal to 6.4% , with the loan to be repaid over fifteen (15) years in
annual payments beginning twelve (12) months after the receipt of the loan. The loan
proceeds will be available within thirty (30) days after a written request of IRWD submitted
by City at any time subsequent to the effective date of this Agreement.
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2. CONSTRUCTION OF BASIC INTEGRATED REUSE PROJECT: •
A. The Parties agree that OCWD will be designated as the lead agency for the
construction of GAP II and the Intertie. The Parties agree to use their best efforts to
ensure that GAP II and the Intertie are constructed and installed on or before October 1,
1997. Toward that end, the Parties agree to do the following:
(1) OCWD agrees to phase the construction of GAP II such that the
initial portion of the facility to be constructed is the pipeline from the current terminus of
Phase I to the point of connection with the Intertie (generally at the intersection of
University and Jamboree);
(2) OCWD agrees to consolidate the construction of the Intertie and
GAP II under the same contract, with the same construction management;
(3) The Parties agree to use their best efforts to expedite permit .
issuance, permit review, or plan check, including the assignment of personnel capable
and willing to expedite, review or approve necessary plans or permits.
B. City, OCWD, and IRWD each agree to pay up to one third of the cost, not to
exceed. $30,000 each, of retaining engineering consultant who shall act as a Project
Manager to implement and coordinate the timely completion of all components of the
Basic Integrated Reuse Project.
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3. FLOW CONSIDERATIONS
• A. IRWD and OCWD agree to meet and confer to develop mutually acceptable
adjustments to the flow commitments specified in this Agreement in the event of any
change in winter Reclaimed Water demand, provided, however, IRWD will not initiate
discharge of any Reclaimed Water into San Diego Creek as a result of any flow
commitment modification implemented pursuant to this subsection.
B. In the event IRWD's ability to deliver 4.6 mgd of Reclaimed Water is
interrupted or reduced due to operational conditions or other circumstances, and it is
necessary for OCWD to supply Reclaimed Water from another source, IRWD will pay
OCWD at one -half the CSDOC rate for the Reclaimed Water supplied by OCWD during
such period.
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4. WWSP DISCHARGE REDUCTIONS
A. In consideration of City's commitments pursuant to Subsection 4.6 (1) -(4)
and Section 5, IRWD agrees not to discharge more than 3.2 mgd of Reclaimed Water
pursuant to the Permit.
B. In consideration of IRWD's commitment to reduce WWSP discharges, City
agrees;
EIR;.
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(1) Not to file an appeal of the Permit;
(2) Not to file or support any legal challenge to the Permit or the WWSP
(3) To request modification of AB 3344 to facilitate implementation of
some or all of the provisions of this Agreement. is
(4) To support amendment of IRWD's consolidated NPDES permit to
authorize use of reclaimed water in the MMA's for irrigation of vegetation in a manner that
does not result in any discharge of Reclaimed Water to San Diego Creek.
5. INTERIM WWSP DISCHARGE RESTRICTIONS
IRWD agrees not to discharge Reclaimed Water pursuant to the Permit during the
period from October I, 1996 through and including March 31, 1997 subject to satisfaction of
the following:
A. CSDOC agrees, on or before October 1, 1996, to calculate IRWD flows to
CSDOC for the purpose of determining Capital Outlay Revolving Fund and Annual Equity •
Adjustment as if IRWD was exercising the Permit pursuant to provisions of this
Agreement (discharging 3.2 mgd of reclaimed water into San Diego Creek);
B. SARWQCB acknowledges that the additional modeling and monitoring as
determined pursuant to Subsection C will, if used with the data derived from a simulated
two month operation of the WWSP (actual operation except for discharge) satisfy the first
year of the Demonstration Phase;
C. City and IRWD shall, on or before September 1, 1996 agree on any
modifications to the internal monitoring program, the external monitoring program, and the
model used to analyze the potential impacts of the discharge necessary or appropriate to
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ensure the most accurate scientific evaluation of the Demonstration Phase of WWSP.
• City and IRWD shall cooperate with SARWQCB staff in evaluating modifications to the
monitoring program required by the Permit to ensure scientific accuracy of the
Demonstration Phase without increasing the costs of monitoring above those required to
evaluate WWSP in accordance with the Permit. City shall fund the initial costs
associated with the additional or modified monitoring or modeling up to a maximum of
$15,000. IRWD shall fund additional costs in excess of the City's initial contribution up to
a maximum of $30,000 ($15,000 from City and $15,000 from IRWD). City and IRWD shall
attempt to reach agreement regarding any additional costs in excess of $30,000.
D. City has obtained fully executed End -user Agreements with the Major
Purchasers;
. E. In the event the preconditions to "no discharge" (A,B,C and D of this
Section) have not been satisfied on or before October 1, 1996, IRWD shall be entitled to
discharge up to 3.2 mgd of Reclaimed Water only if it has received all necessary permits,
approvals and authorizations, provided, however, IRWD shall cease discharge of
Reclaimed. Water pursuant to the Permit if all preconditions to "no discharge" have been
satisfied on or before December 1, 1996, the cessation of discharges will not prejudice
IRWD and the City pays for any costs associated with the cessation of discharges.
F. In the event the preconditions to "no discharge" are fully satisfied on or
before October 1, 1996, and subsequent to the simulated operation of WWSP as well as
at least two months of the summertime low flow diversion, City and IRWD shall meet and
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confer relative to preparation of, and then issue, a joint report on the data received during
monitoring and, to the extent that science will permit, any conclusions that can •
reasonably be drawn from the data. This report, which shall be presented to the Newport
Beach City Council, the IRWD Board of Directors and the SARWQCB shall address, at a
minimum, the following:
(1) Nutrient and other constituent reductions achieved in the Duck
Ponds during the winter and summer;
(2) The extent to which WWSP discharges would impact nutrient and
other constituent levels in Newport Bay during the winter and summer;
(3) The extent to which the discharges would function to stimulate or
arrest the growth of algae and other plant -life;
(4) The location and extent of salinity dilution as well as the likely impact, 0
if any, on flora and fauna in and around Newport Bay; and
(5) The public health risks, if any, posed by the discharges.
G. In the event there is no discharge of Reclaimed Water pursuant to the
Permit during the period from October 1, 1996 through March 31, 1997, then the initial
discharge pursuant to the Permit shall commence on October 1, 1997 at the rate of 3.2
mgd subject to further reduction or elimination pursuant to Section 6.
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6. LONG TERM "NO DISCHARGE" SCENARIO
A. City and IRWD agree to use their best efforts to reach agreement on ways
to fully achieve Project Objectives without the discharge of Reclaimed Water into San
Diego Creek or Newport Bay. City and IRWD acknowledge that development of a long
term "no- discharge" scenario requires the resolution of the issues identified in this
section.
B. OCWD has expressed a willingness to accept 7.8 mgd of Reclaimed Water
from IRWD on a continuous basis during the period from October 1 through March 31 if it
has the ability to beneficially use, or lawfully dispose of, excess flows. The Parties have
been advised that disposal of excess flows directly into the outfall facility maintained by
CSDOC is feasible and is estimated to cost approximately $100,000. Accordingly, by
. January, 1997, there must be an agreement between the City and IRWD regarding the
preparation of, and payment for, all necessary environmental documents, the processing
and approval of all necessary permits, the design and construction of any physical facility
necessary to discharge, and payment of all costs related to the actual discharge or
transmission of, that portion of the excess flows that OCWD is unable to beneficially use.
C. To satisfy Project Objectives and its obligations pursuant to the Grant Deed,
IRWD must have a reliable source of water to irrigate the Duck Ponds and the MMA's
from October 1 through March 31. Possible sources of irrigation water include San
Diego Creek and Reclaimed Water which is retreated and distributed to IRWD's
customers. Diversion of flows from San Diego Creek during the winter will involve the
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construction of an instream facility which may require environmental documentation and
mitigation. The cost of construction is uncertain as is the source of funding. IRWD is •
uncertain about operational feasibility issues, including the cost to retreat Reclaimed
Water used to irrigate the Duck Ponds and MMA's. City and IRWD shall discuss, in good
faith, the irrigation alternatives, the responsibility for implementing the preferred
alternative and the funding of any costs associated with the preferred alternative.
D. WWSP has the potential to significantly reduce nutrients in Newport Bay
during the summer. The external monitoring program and the baseline characterization
studies will provide the SARWQCB with information helpful to establishment of standards
pursuant to the Clean Water Act and other actions which will improve bay water quality.
City and IRWD will attempt, in good faith, to reach agreement on continued summertime
creek diversions, monitoring, and other activity important to improvement in bay water .
quality in the event IRWD is not obligated to do so because it is not discharging pursuant
to the Permit.
C/ 4)
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(7) TERM.
The term of this Agreement shall expire at the end of the fifteen year period
described in Section 1 (C) (2)
Approved as to Form:
0
Irvine Ranch Water District
7
By
Counsel
By
Approved as to Form:
By EP44 Sk�
General Counsel
Orange County Water District
Approved as to Form:
FAcatlbumhamtiiwdocw2.doc
7nsrss
Orange County Water District
By 'X� o
President, Board of Directors
By
General Ranager
City of Newport Beach
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THIRD AMENDED AND RESTATED AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT •
END -USER AGREEMENT FOR DELIVERY AND SALE
OF RECLAIMED WATER TO BIG CANYON COUNTRY CLUB
THIS THIRD AMENDED AND RESTATED AGREEMENT is made and
entered into as of this 30th day of September, 1996 by and between the City of Newport
Beach, a Municipal Corporation, hereinafter referred to as "CITY", and the Big Canyon
Country Club, a private, non - profit mutual benefit corporation, hereinafter referred to as
"USER ".
RECITALS
A. With the exception of certain limited areas served by the Irvine
Ranch Water District ( "IRWD "), CITY is the exclusive retail water purveyor within
CITY's boundaries providing water for residential, industrial, commercial, public agency,
agricultural and other uses. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced from
the Orange County groundwater basin, which basin is managed by the Orange County
Water District ( "OCWD ").
B. USER is a private corporation within the jurisdictional and service
boundaries of CITY, and currently purchases potable water from CITY for its own use at
Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. CITY has agreed to buy reclaimed water from OCWD and resell
such reclaimed water pursuant to the terms and conditions specified in that certain
agreement entitled "Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water" dated as
of January 16, 1991, and as it may be subsequently amended, hereinafter referred to as
NB1- 287654.V4 1 12/03196
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"Retailer Agreement ". City executed the Retailer Agreement for the purpose of seeking
• to provide its present and future residents with a supplemental source of water to meet
their needs and to assist in the statewide objective of conserving and utilizing to the
maximum degree possible the water of the People of the State of California, which water
shall be recovered from the operation known as the "Green Acres Project" for all
possible beneficial uses.
D. The Green Acres Project is being planned for extension into CITY's
service area for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the IRWD, such wastewater having
been treated by OCWD or IRWD to standards established by the State Health
Department and transported and sold by OCWD as "Project Water" to CITY to be
resold to Project Water customers.
E. USER desires to purchase Project Water from CITY for allowable,
• suitable nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities (hereinafter referred to as "SITE "), in lieu of potable water currently
purchased from CITY, and CITY is willing to sell Project Water to USER.
AGREEMENT
NOW THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the
Green Acres Project that will convey Project Water to various locations within
CITY boundaries, including the SITE. All Project Water will originate from
either the OCWD Green Acres Project Water Treatment Facility or a similar
•
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facility operated by IRWD. OCWD owns the main transmission pipeline facility
and service line which serves USER upstream of CITY's reclaimed water service .
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CITY owns, operates and maintains all reclaimed water service meter
vault piping, by -pass line piping, service meter vault, Pump Station (as hereinafter
defined), service meter and control valves, which facilities shall hereinafter be
referred to collectively as "City Facilities ". USER owns and maintains the
pipelines, backflow preventers, warning signs, warning tags and all appurtenances
downstream of CITY's reclaimed water service meter vault, which facilities shall
hereinafter be referred to as "On -Site Facilities" and are more fully set forth on
the drawings attached hereto as Exhibit A -1 (to be attached within sixty (60) days
of the execution of this Agreement).
The point where USER's piping connects to the downstream end of CITY's
reclaimed water service meter vault shall hereinafter be referred to as the "Point
of Connection ". The Point of Connection will be in the Jamboree Road parkway .
near USER's maintenance yard entrance approximately 1,300 feet northerly of
San Joaquin Hills Road, as shown on Exhibit A -2 attached hereto (to be attached
within sixty (60) days of the execution of this Agreement).
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CITY by
USER. USER shall also own and maintain all devices relating to USER's on -site
potable water system including, but not limited to, drinking fountain covers,
backflow preventers and identification tags.
CFFY shall be responsible for all costs associated with constructing and
maintaining a pump station on the SITE (the "Pump Station "), which Pump
Station shall be owned by CITY. For ten (10) years following the date Project
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Water is provided to the SITE as provided herein, CITY shall be responsible for
• all energy costs associated with the Pump Station, and USER shall be responsible
for all such energy costs thereafter. USER and CITY shall execute a separate
agreement in which USER will grant to CITY at no cost to CITY an easement or
license across USER's property to provide reasonable access for the construction,
installation and maintenance of the Pump Station. Such agreement will be
attached hereto within sixty (60) days of the execution of this Agreement as
Exhibit .
In addition, within sixty (60) days after the execution of this Agreement, USER
shall provide to CITY information with respect to USER's use of water,
fertilizers, water supplements and the costs thereof for the prior five (5) year
period. Within sixty (60) days of beginning to purchase Project Water from CITY
under this Agreement, USER shall provide CITY with the same information for
the period between (a) executing this Agreement and (b) the purchase of Project
• Water from CITY.
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be referred
to as "Project Rules ", provided that CITY shall have provided USER with a copy
of such Project Rules and shall provide USER with any modifications or additions
thereto within ten (10) days of the promulgation of such modifications or
additions. In the event that CITY and /or OCWD or any other governmental
agency shall promulgate any rule or regulation that shall cause the total cost to
USER for the use of Project Water to exceed the total cost to USER if it had
•
NB1- 297654.V4 4 12/03196
used potable water instead of Project Water, USER may terminate this
Agreement upon thirty (30) days notice to CITY and as set forth in Section 14 of
this Agreement. For purposes hereof, the total cost to USER shall include all
costs and expenses of any kind or nature directly or indirectly associated with the
use of Project Water including, without limitation, the rate charged for such use
pursuant to this Agreement and the incremental costs incurred to comply with this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER; INSTANTANEOUS
MAXIMUM FLOW
CITY agrees to supply Project Water to USER and USER agrees to purchase
Project Water. The anticipated average annual Project Water usage at the Site is
two hundred ninety (290) acre -feet. Project Water flow demands at the STIus
service shall not exceed an instantaneous maximum flow of two thousand two
hundred (2,200) gallons per minute. CITY's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project Facilities
by OCWD. In the event that the current use of the property discontinues or is
modified, USER may modify or terminate this Agreement, as applicable, subject
to the conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards or evidence of such hazards are found to exist, CITY reserves
the right and has the authority to take action to insure that the situation be
remedied and to protect the public health, as is further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
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4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees that all Project Water delivered to USER from the Project Facilities
pursuant to this Agreement shall conform to (a) the current and future
requirements established by the California Regional Water Quality Control Board
- Santa Ana Region, State and local health departments, and Federal, State and
county agencies having jurisdiction to fix minimum standards for the quality of
water with respect to USER's anticipated use, which Board, health departments
and agencies shall hereinafter be referred to as "Regulatory Agencies "; and (b)
such minimum standards set by Regulatory Agencies as will prevent the Project
Water from causing any damage to USER's property and all plants and vegetation
located thereon. Furthermore, CITY agrees that Project Water delivered to
USER pursuant to this Agreement shall conform to the requirements set forth in
Exhibit B -1 attached hereto (to be attached within sixty (60) days of the execution
of this Agreement). If the Project Water fails to conform to the above
• requirements, CITY covenants that CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place, and USER may terminate this
Agreement if such requirements are not met within thirty (30) days. CITY
understands and acknowledges that even a minor interruption in water service will
have a significant impact upon the SITE and may result in significant interference
and damage to the conduct of USER's business. Except as provided in the final
sentence of Section 3 above, any loss, cost, damage or expense resulting, directly
or indirectly, from the cessation or termination of service shall be borne by CITY.
In addition to the foregoing, CITY covenants that all Project Water delivered to
USER pursuant to this Agreement will not (x) emit any offensive odor, (y) cause
undesirable change to the environmental makeup of any of the lakes found on
USER's property, including any offensive change to the odor, algae level, color or
wildlife composition of such lakes, or (z) cause damage to USER's property or
grass, plants or other vegetation located thereon, which damage shall include
NB1- 2876U.V4 6 12M1%
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excessive salt buildup. In the event that USER shall decide, in USEws
reasonable judgment, that any of (x), (y), or (z) above exists, CITY and USER
agree to use the following procedure:
(1) USER shall notify CITY of the problem.
(2) CITY shall, within three (3) days of such notification,
investigate the problem.
(3) If CITY agrees that a problem exists, CITY will attempt to
remedy the problem. If CITY is unable to remedy the
problem within thirty (30) days after CITY receives notice
from USER, CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place.
(4) If CITY does not agree that a problem exists, CITY will
notify USER of the same within three (3) days after CITY
receives notice from USER. CITY and USER will meet to
discuss the issue within seven (7) days of such notification .
from CITY.
(5) If CITY and USER are still unable to agree whether a
problem exists, CITY and USER shall together select a
mediator. CITY and USER shall then present their views to
the mediator, and the mediator shall decide whether a
problem exists. CITY and USER agree to be bound by the
mediator's decision; however, CITY and /or USER may
pursue the matter through arbitration as provided in Section
18 hereof.
(6) If the mediator decides that a problem exists, the mediator
shall proscribe the course of action CITY must take to
remedy the problem. CITY must attempt immediately
thereafter to remedy the problem in the manner proscribed.
If CITY is unable to remedy the problem within thirty (30)
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days of receipt by CITY of the proscribed course of action
from the mediator, or within such longer period as deemed
reasonable by the mediator, CITY will terminate the flow of
Project Water to the SITE and provide potable water in its
place.
(7) If the mediator decides that no problem exists, USER must
continue to accept Project Water as contemplated herein.
The replacement of Project Water by potable water as provided above shall be on
a temporary basis only; once CITY and USER agree that the situation has been
remedied, CITY shall provide Project Water in the place of potable water on the
SITE. If there is disagreement as to whether the situation has been remedied,
CITY and USER shall follow the procedure outlined above to resolve such
dispute.
Project Water shall be delivered on a continuous basis at a pressure of not less
• than ninety pounds per square inch (90 psi) for demands under thirteen hundred
gallons per minute (1,300 gpm), and not less than eighty pounds per square inch
(80 psi) for demands from thirteen hundred one gallons per minute (1,301 gpm)
to two thousand two hundred gallons per minute (2,200 gpm) at the Point of
Connection between the hours of 8:00 p.m. to 6:00 a.m. USER shall not exert a
demand for Project Water between the hours of 6:00 a.m. and 8:00 p.m. unless
USER's staff is present to ensure that the public does not come into contact with
Project Water.
5. PRICE OF PROJECT WATER
CITY acknowledges the concerns of USER regarding (a) the potential need to
add or adjust fertilizers and /or water supplements to the Project Water in order
to maintain high quality fairway turf, and (b) the potential need to use additional
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amounts of water in order to offset the increased amounts of nutrients in the
Project Water. CITY desires to comply with State law by only requiring USER to .
use reclaimed water in its irrigation operations if CITY supplies Project Water to
USER at a cost less than or comparable to the cost of potable water.
Therefore, during the entire term of this Agreement, the price to be paid by
USER for Project Water delivered by CITY shall not exceed the lower of (a)
eighty percent (80 %) of the weighted average of CITY's retail rates for potable
water, excluding any surcharges that are based on usage of potable water, as such
rates are established by resolution of the City Council and enforced on the date of
delivery of the Project Water, or (b) the lowest rate then offered by CITY to any
purchaser of reclaimed water, whether such rate is determined as a percentage of
CITY's retail rate for potable water or otherwise. The retail rates for potable
water shall be subject to modification as determined by and within the discretion
of the City Council. At least ten (10) days prior to the adoption of a resolution
establishing the water rates of CITY and /or modifying the purchase price of •
Project Water, CITY shall give written notice to USER and provide notice as
prescribed in the City Municipal Code of a public hearing on the resolution and
price which shall apply following adoption of said resolution. Failure to give
notice shall not invalidate the action of the City Council.
If, despite the reduced rate charged USER for Project Water in the preceding
paragraph, USER believes that unreimbursed incremental costs have been
incurred as a result of the use by USER of Project Water that would not have
been incurred if USER had used potable water, the following steps shall be taken:
Within six (6) months after the end of this two (2) year period, and within six (6)
months after the end of each two (2) year period thereafter, USER shall submit
to CITY an itemized account of the costs expended during the previous two years
that were necessary to accommodate the use of Project Water on the SITE,
NB1- 287650.V0 9 11103/96
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including, without limitation, costs of fertilizers, water supplements, and /or other
additives, costs of construction of any special systems, such as a gypsum- injection
system, costs of any special processes, such as deep tine aeration, and costs of
excess Project Water that was needed to offset the increased amounts of nutrients
in the Project Water. CITY shall review this information and, with the help of
landscape and irrigation specialists, shall determine which costs may be solely
attributed to USER's use of Project Water as opposed to potable water on the
SITE. If USER disagrees as to CITY's determination, CITY and USER shall
select a mediator to settle the dispute as set forth in Section 4(5) herein. CITY
shall then make an adjustment to the rate for Project Water that will (a)
reimburse USER for the costs incurred during the previous two (2) years that are
attributed solely to the use of Project Water as opposed to the use of potable
water, and (b) compensate USER for the costs that are anticipated to be incurred
during the next two (2) years that are attributed solely to the use of Project Water
as opposed to potable water. The adjustment described in the previous sentence
• shall be to the extent necessary for CITY to comply with State law that requires
CITY to provide Project Water to USER at a cost, including all expenses
•
associated therewith, that is less than or comparable to the cost of potable water.
USER and CITY may enact a formal process that implements the intent of this
paragraph.
6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY or a designated representative of CITY
shall periodically read the service meter and record usage of Project Water onto a
schedule.
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7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CITY's regular billing cycle. Said invoices shall be paid within nineteen
(19) days of the billing date. CITY retains the right to change billing cycles and
due dates as necessary upon sixty (60) days prior written notice to USER, so long
as such change is consistent with formally adopted City -wide practices and
procedures and State law.
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for these uses.
9. COVENANTS, REPRESENTATIONS AND WARRANTIES •
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's
irrigation needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project
Facilities and City Facilities have complied and will comply with all
regulations promulgated by all Regulatory Agencies and all other
applicable laws.
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(c) CITY will use all commercially reasonable efforts to supply to
. USER Project Water that falls within the parameters set forth in
Exhibit B -2 attached hereto.
(d) CITY will provide USER with all engineering support requested by
USER, without charge, including the assistance of CITY engineers
and other staff, to assist in the review of USER's irrigation system
redesign for the purposes contemplated herein.
(e) At CITY's cost, CITY will make presentations to USER, USER's
club members and related homeowners' associations with respect to
the Green Acres Project and Project Water.
(f) In the event that CITY is in breach or default under this
Agreement, at USER's election, CITY shall assign to USER all of
• its rights and remedies under the Retailer Agreement.
•
CITY hereby represents and warrants as follows:
(a) USER may use potable water to irrigate putting greens, the
perimeter of selected fairways located adjacent to residences, and
elsewhere on the SITE as agreed to by USER and CITY and within
acceptable State Health Department standards.
(b) OCWD is not a party to any agreement between CITY and a user
of Project Water.
10. INDEMNIFICATION
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CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
•
expense or damage of any kind or nature and from any suits, claims or demands,
including (a) all consequential damages; (b) all damages to any natural resources,
and the costs of any required or necessary repair, clean up, response cost, or
detoxification of the SITE or any portion thereof, and the preparation and
implementation of any closure, remedial or other required plans; and (c) all costs
and expenses incurred in connection with clauses (a) and (b), including all
attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or
damage, including clauses (a), (b) and (c) above, shall collectively be referred to
herein as 'Damages "), which arise directly or indirectly out of (x) the use by
USER of the Project Water as opposed to potable water as contemplated herein,
(y) the existence or alleged existence of any Hazardous Substances (as defined
below) in the Project Water, or (z) the failure to remove any Hazardous
Substances from the Project Water, unless such suit, claim or demand is caused
primarily by the gross negligence or willful misconduct of USER, its directors,
•
agents and employees, or the grossly negligent operation, maintenance or repair
by USER of On -Site Facilities required to be operated, maintained or repaired by
USER pursuant to this Agreement. The foregoing indemnity shall apply to any
residual contamination on, under or about the SITE, as well as claims of any
neighboring property owners or occupants, and to any contamination of any
property or natural resources, arising from the Project Water. Upon receiving
knowledge of any suit, claim or demand asserted by a third party that USER
believes is covered by this indemnity, USER shall give CITY notice of the matter
and an opportunity to defend it, at CITY's cost and expense, with legal counsel
satisfactory to USER. USER may also require CITY to so defend the matter.
CITY will pay all fees or penalties imposed by any Regulatory Agency or any
other governmental authority for any violation of any code, regulation or law with
respect to the transportation, use or chemical composition of the Project Water.
NB1- 297654.V4 13 12/03196
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The obligations of CITY under this Section 10 shall survive the expiration or
• termination of this Agreement.
CITY acknowledges that excess water from USER irrigation operations and from
lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water will
drain into the Upper Newport Bay as well. CITY agrees to indemnify, defend,
save and hold harmless USER, its directors, agents and employees from and
against any and all Damages which arise directly or indirectly out of such drainage
of Project Water into the Upper Newport Bay as well as any modification or
termination of USER's right to allow its excess water to drain into the Upper
Newport Bay when the modification or termination is required because of
USER's use of Project Water as contemplated herein.
As used herein, "Hazardous Substances" shall mean (a) any chemical, compound,
• material, mixture or substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Law (as defined below) as a
"hazardous substance ", "hazardous material ", "hazardous waste ", "contaminant" or
any other formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity" or "TCLP
toxicity'; and (b) any other chemical, material, or substance that, because of its
quantity, concentration, or physical or chemical characteristics, exposure to which
is limited or regulated for health and safety reasons by any governmental
authority, or which poses a significant present or potential hazard to human health
and safety or to the environment if released into the workplace or the
environment. "Environmental Law" shall mean shall mean any and all present
and future Federal, state and local laws (whether under common law, statute or
otherwise), ordinances, regulations, permits, guidance documents, policies, and any
NB1- 287654.V4 14 12/03/96
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other requirements of governmental authorities relating to health, safety, the
environment or to any Hazardous Substances. •
11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's reasonable cooperation, any and all applications and to
undertake such proceedings as may be necessary to enable OCWD, CITY and
USER to carry out the undertaking described herein, and to pursue such
applications and proceedings in good faith and with due diligence, including any
application required to be issued to OCWD by Regulatory Agencies. USER
understands and agrees that USER must comply with the regulations set forth in
permits if such permits apply to USER, provided that such compliance by USER
shall not materially increase the cost of Project Water or unreasonably interfere •
with USER's golf course and related operations.
12. INTENTIONALLY DELETED
13. CONDITIONS PRECEDENT
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(a) This Agreement is conditioned upon OCWD, CITY and USER
executing by December 18, 1996 that certain Agreement between
Orange County Water District, City of Newport Beach and Big
Canyon Country Club Regarding Retrofitting Irrigation Facilities at
Big Canyon Country Club for Use of Green Acres Project Water.
15
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(b) This Agreement is conditioned upon OCWD's completing and
making operational the Green Acres Project by July 1, 1998,
including the following: (a) the transmission pipeline is extended to
the Site; (b) OCWD makes Project Water available for sale; and
(c) all necessary permits, certificates and approvals are issued by all
Regulatory Agencies having jurisdiction over the construction and
operation of water reclamation facilities and over the production,
distribution, sale and use of Project Water. This Agreement is
further conditioned upon (y) OCWD's acquiring by July 1, 1998,
acceptable right -of -way access from the Project Facilities to the
SITE for transportation pipeline purposes, and (z) OCWD and
CITY gaining by July 1, 1998, the approval by all federal, state and
local agencies having regulatory jurisdiction or grant - funding
responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given
• time limits, USER may cancel this Agreement.
(c) Within three (3) years from the date the conditions specified in
items (a), (b), (c), (y) and (z) above have been satisfied, the
redesign of USER's irrigation system to accommodate Project Water
shall have been completed and USER shall have begun purchasing
Project Water from CITY as provided herein.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy -
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty -four (24) hours advance notice when resumption of the delivery of Project
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Water to USER's SITE is expected. In the event CITY is unable to deliver
Project Water to USER or defaults under this Agreement, CITY must provide
USER with potable water at the potable water rate or reclaimed water at the
Project Water rate, subject to the right of CITY to determine allocation of all
water, both Project Water and potable, in the event of emergencies. If USER
terminates this Agreement as authorized under the terms of this Agreement,
CITY must contemporaneously provide USER with potable water in the place of
Project Water. Furthermore, in the event that OCWD ceases producing and
distributing Project Water or in the event that the treatment criteria imposed by
any Regulatory Agencies exceeds those existing as of the date of this Agreement,
either CITY or USER shall have the option to cancel this Agreement. CM
shall convert service on the SITE back to a potable water system(s) at no expense
to USER if there is a cessation in service or this Agreement is canceled or
terminated for any reason (other than the expiration of the term pursuant to
Section 16 below), as well as converting back to Project Water if service is to be
restored pursuant to the terms of this Agreement. 0
15. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The initial term of this Agreement shall be ten (10) years from the day and year
first above written. USER shall have the option to extend said initial term for
two (2) additional ten (10) year terms, provided that USER gives CITY written
•
NB1- 297654.V4 17 12103/96
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notice of such election at least six (6) months prior to the expiration of the
. previous term. The parties do hereby agree that any portion of this Agreement
may, be revised by written amendment at any time by mutual agreement of the
0
parties hereto.
17. ASSIGNMENT
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without the written consent of CITY, which consent shall not be
unreasonably withheld.
18. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the
written request of any party be arbitrated pursuant to the applicable
rules of the American Arbitration Association. The arbitration shall
occur in the State of California. Judgment upon any award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction. The Federal Arbitration Act shall apply to the
construction and interpretation of this arbitration agreement.
(b) A single arbitrator shall have the power to render a maximum
award of one hundred thousand dollars ($100,000). When any party
files a claim in excess of this amount, the arbitration decision shall
NBl- 287654.V4 18 12/03/96
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be made by the majority vote of three (3) arbitrators. No arbitrator
shall have the power to restrain any act of any party.
(c) No provision of subparagraph (a) shall limit the right of any party to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including, but not limited to, injunctive relief) from a
court of competent jurisdiction. The institution and maintenance of
any remedy permitted above shall not constitute a waiver of the
rights to submit any controversy or claim to arbitration. The statute
of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall
be applicable in any arbitration proceeding.
19. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
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or such other address as CITY or USER shall direct in writing. Service of any
• instrument or writing by mail shall be deemed complete forty -eight (48) hours
after depositing the same in a United States mail depository.
20. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CITY and USER and their respective successors and assigns.
I*
is
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IN WITNESS WHEREOF, the parties herein have executed this
Agreement as of the date set forth above.
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH,
a municipal corporation
Robert Burnham, Esq.
City Attorney
BIG CANYON COUNTRY CLUB,
a private corporation
Jo am' on
Pr sident
NB1- 287654.V4
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Kevin J. Murphy
City Manager
ATTEST:
LaVonne Harkless
City Clerk
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ACKNOWLEDGEMENT OF CONSENT TO
EXECUTION OF AGREEMENT
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The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND BIG
CANYON COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN
ACRES PROJECT WATER TO BIG CANYON COUNTRY CLUB" entered into this
day of , 1996, by and between the CITY of
Newport Beach, as the Retailer of Project Water, and Big Canyon Country Club, as the
USER of Project Water, for delivery and sale of Project Water to Big Canyon Country
Club, One Big Canyon Drive, Newport Beach, CA, for landscape irrigation.
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
Clark Ide, Esq. George Osborne
General Counsel President
William R. Mills, Jr.
General Manager
NBI- zU7654.v4 22 12/03/96
3y
0
•
AGREEMENT BETWEEN ORANGE COUNTY WATER
DISTRICT, CITY OF NEWPORT BEACH •
AND BIG CANYON COUNTRY CLUB
REGARDING RETROFITTING IRRIGATION
FACILITIES AT BIG CANYON COUNTRY CLUB
FOR USE OF GREEN ACRES PROJECT WATER
This Agreement (the "Agreement ") is made and entered into as of
December 18, 1996, by and between the ORANGE COUNTY WATER DISTRICT, a
political subdivision of the State of California, hereinafter referred to as "OCWD," the
CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as
"CITY," and BIG CANYON COUNTRY CLUB, a private, non - profit mutual benefit
corporation, hereinafter referred to as "USER."
RECITALS
A. OCWD is the producer of reclaimed water from the Green Acres •
Project, hereinafter referred to as 'Project Water." CITY has agreed to buy Project
Water from OCWD and resell it to end -users pursuant to the terms and conditions
specified in that certain Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water, dated as
of January 16, 1991.
B. USER currently purchases potable water from CITY for its own use
at the Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. USER has agreed to purchase Project Water from CITY for
allowable, suitable nonpotable uses, specifically landscape irrigation of its golf course and
certain related facilities (hereinafter referred to as the "SITE "), in lieu of potable water
currently purchased from CITY, except for the irrigation of putting greens, the perimeter
of selected fairways located adjacent to residences, and elsewhere on the SITE as agreed
tali- 28aao7.v4
tziovve
•
to by USER and CITY and within acceptable State Health Department standards, as set
• forth in that certain "Third Amended and Restated Agreement; Green Acres Reclaimed
Water Project End -User Agreement for delivery and sale of reclaimed water to Big
Canyon Country Club" (the "End -User Agreement ") dated as of September 30, 1996, by
and between CITY and USER.
D. USER acknowledges the benefit of receiving Project Water for use
as irrigation water at the SITE.
E. OCWD and CITY acknowledge the benefit of having USER receive
Project Water during the time period specified herein.
F. OCWD and CITY acknowledge that USER will incur substantial
costs for retrofitting the existing irrigation system for the use of Project Water at the
SITE.
AGREEMENT
NOW, THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions herein contained, the parties hereto agree as follows:
1. USER has agreed to receive Project Water subject to the terms and
conditions of the End -User Agreement. OCWD and CM have agreed to pay USER
for the retrofit of USER's irrigation system. Those payments are set forth herein.
2. OCWD shall (a) contribute to USER Five Hundred Thousand
Dollars ($500,000) in immediately available funds on March 1, 1997, and (b) be
responsible for the design and construction of the Project Water service connection and
bear all costs associated therewith.
HBl -2a ON4 2
12!02!96
4 0
3. CITY shall (a) contribute to USER One Hundred Eight Thousand
Dollars ($108,000) in immediately available funds on July 1, 1997, (b) pay for the
construction and maintenance of the Pump Station on the SITE, and (c) reimburse
USER for the energy costs associated with the Pump Station for ten (10) years following
the date Project Water is provided to the SITE.
4. USER acknowledges that OCWD's and CITY's contributions
towards preparing the SITE for the use of Project Water represents a significant
expenditure of public funds. Therefore, in the event USER abandons the use of Project
Water within ten (10) years from the day and year first above written except as provided
below, USER shall reimburse OCWD and CITY for said contributions in Sections 2 and
3 above, respectively (each, the 'Principal") less the Principal Forgiven (defined herein
as ten percent (10 %) of Principal per year for each year Project Water is used), plus the
cumulative interest (defined herein as six percent (6 %) compounded annually from the
date such Principal was provided to USER) on the Residual Principal (defined herein as
Principal less Principal Forgiven) at the time of abandonment, as set forth in Exhibits A •
and B respectively, attached hereto and incorporated herein. Abandonment of Project
Water shall be understood to mean usage of Project Water which is less than 50
acre -feet in any twelve (12) month period. USER shall be exempt from said
reimbursement requirement if USER abandons the use of Project Water pursuant to
Sections 2. 4. 13 or 14 of the End -User Agreement.
5. This Agreement and the rights and benefits of OCWD and CITY
hereunder may be assigned or transferred by OCWD and CITY to any entity that
assumes the responsibilities and obligations of OCWD and /or CITY for the sale and
distribution of Project Water, provided, however, that OCWD and CITY shall remain
fully liable for all of the responsibilities and obligations of OCWD and CITY hereunder,
respectively. USER shall not assign or transfer the rights and benefits of USER under
this Agreement to any entity without the prior written consent of OCWD and CITY,
which consent shall not be unreasonably withheld or delayed.
xe1- 2M4MN4 3
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121021%
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6. In the event that any party hereto brings any action, suit, arbitration
or other proceeding against another party arising out of or relating to the subject matter
of this Agreement, its validity or any of the terms or provisions hereof, then the
prevailing party in such action, suit, arbitration or other proceeding shall recover from
the other party its reasonable attorneys' fees and costs incurred in connection therewith,
in addition to any other relief to which it may be entitled. Said attorneys' fees shall
include such fees for prosecuting or defending any appeal and shall be recoverable and
awarded for any supplemental proceedings until the final judgment is satisfied in full.
7. This Agreement is conditioned upon USER obtaining from Dr. Dale
Devitt by December 31, 1996 an opinion that the Project Water to be provided by CITY
to USER within the parameters set forth in Exhibit B -1 to the End -User Agreement may
be used by USER without any measurable adverse consequences (financial or otherwise)
to the SITE.
8. The term of this Agreement shall be for ten (10) years from the day
and year above written. The parties do hereby agree that any portion of this Agreement
may be revised by written amendment at any time by mutual agreement of the parties
hereto.
9. All notices, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties hereto under
this Agreement shall be personally served or deposited in the United States mail
depository, first class postage prepaid, and addressed as follows:
NB1- 2M407.V4
07 )
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728 -8300
Attention: General Manager
4
12/02/96
CITY: City of Newport Beach
3300 Newport Boulevard .
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
or such other address as the parties shall direct in writing. Service of any instrument or
writing by mail shall be deemed complete forty -eight (48) hours after depositing in
United States mail depository.
i
10. This Agreement, and all of the provisions herein, shall be binding
upon and inure to the benefit of OCWD, CITY and USER.
NBI- 284407.V4 5
]2/02/96
r�
40
E
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L,
i •
IN WITNESS WHEREOF, the parties herein have executed this Agreement as of
the date set forth above.
APPROVED AS TO FORM:
ORANGE COUNTY WATER DISTRICT,
a political subdivision of
the State of California
By:
General Counsel
CITY OF NEWPORT BEACH,
a municipal corporation
ATTEST:
LaVonne Harkless
City Clerk
NBl- 2M407. V4
�5�r�
By:
President
By:
General Manager
Kevin J. Murphy
City Manager
6 12/02/96
0
BIG CANYON COUNTRY CLUB,
a private corporation
„J. �-
/Joh# Hamilto
\,,Y�r ident
NB1- 284407.V4
4 1
7
0
12/02/96
•
•
•
0
•
EXHIBIT A
GREEN ACRES PROJECT
BIG CANYON COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE ORANGE COUNTY WATER DISTRICT
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (OCWD Funding)
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
$500,000.00
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL DEBT
1st Year
$500,000.00
$30,000.00
$530,000.00
2nd Year
$450,000.00
$74,880.00
$524,880.00
3rd Year
$400,000.00
$103,880.00
$503,880.00
4th Year
$350,000.00
$126,175.00
$476,175.00
51h Year
$300,000.00
$140,790.00
$440,790.00
6th Year
$250,000.00
$146,725.00
$396,725.00
7th Year
$200,000.00
$142,760.00
$342,760.00
8th Year
$150,000.00
$127,635.00
$277,635.00
9th Year
$100,000.00
$99,900.00
$199,900.00
10th Year
$ 50,000.00
$57,945.00
$107,945.00
After 10th Year
$ 0.00
$ 0.00
$ 0.00
r]
EXHIBIT B
GREEN ACRES PROJECT
11
BIG CANYON COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE CITY OF NEWPORT BEACH
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (City of Newport Beach Funding)
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
$108,000.00
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
•
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TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL DEBT
1stYear
$108,000.00
$ 6,480.00
$114,480.00
2nd Year
$97,200.00
$16,174.08
$113,374.08
3rd Year
$86,400.00
$22,438.08
$108,838.08
4th Year
$75,600.00
$27,253.80
$102,853.80
5th Year
$64,800.00
$30,410.64
$ 95,210.64
6th Year
$54,000.00
$31,692.60
$85,692.60
71h Year
$43,200.00
$30,836.16
$74,036.16
8th Year
$32,400.00
$27,569.16
$59,969.16
9th Year
$21,600.00
$21,578.40
$43,178.40
10th Year
$10,800.00
$12,516.12
$23,316.12
After 10th Year
$ 0.00
$ 0.00
$ 0.00
•
0
THIRD AMENDMENT TO AGREEMENT
THIS THIRD AMENDMENT is made and entered into this 9th day of
December, 1996 by and between the City of Newport Beach, a Municipal
Corporation, hereinafter referred to as "City ", and the Newport Beach Country
Club, Inc., a California corporation, hereinafter referred to as "User."
RECITALS
A. City and User entered into an Agreement, dated September 30, 1996 for
the delivery and sale of reclaimed water.
B. Paragraph 13(a) of the Agreement provides that the Agreement is
conditioned upon User and the Orange County Water District ( "OCWD ") executing
by November 1, 1996 an agreement regarding the design and construction of
reclaimed water retrofit at User's golf course facility and a loan agreement for the
design, construction and retrofit of the User's irrigation system.
C. City and User entered into an Amendment to the Agreement and
subsequently a Second Amendment to Agreement to extend the deadline in
Paragraph 13 (a) (i) and 13 (a) (ii) to November 30,1996. The Parties now wish to
extend the deadline a third time to December 18, 1996 and delete any reference
to a loan agreement by the City, but rather provide for a three party Retrofitting
. Irrigation Facilities Agreement between City, OCWD and Newport Beach Country
Club ( "NBCC ").
D. Paragraph 1 now provides that the User shall be responsible for all energy
costs associated with the pump station owned and maintained by the City.
Paragraph 1 also provides that User will grant to City an easement or license
across User's property to provide reasonable access for the pump station. The
parties now wish to amend Paragraph 1 to provide that the City will pay for the
energy costs for the pump station for ten years and clarify that the easement for the
pump station shall be for the construction, installation and maintenance of the
pump station. Further, the parties wish to amend that Paragraph 1 to clarify that
the easement shall be provided to the City at no cost to the City.
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Amendment and the Agreement, the
parties agree as follows:
Paragraph 13 (a) (i) and (ii) are hereby amended to read as follows:
"This agreement is conditioned upon OCWD, CITY and USER
executing by December 18, 1996 that certain Agreement between
Orange County Water District, City of Newport Beach and Newport
Beach Country Club Regarding Retrofitting Irrigation Facilities at
Newport Beach Country Club for Use of Green Acres Project Water."
. 2. The fourth paragraph contained in Paragraph 1 is hereby amended
to read as follows:
61
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"CITY shall be responsible for all costs associated with constructing
and maintaining a pump station on the SITE (the "Pump Station "),
which Pump Station shall be owned by CITY. For ten (10) years
following the date Project Water is provided to the SITE as provided
herein, CITY shall be responsible for all energy costs associated with
the Pump Station, and USER shall be responsible for all such energy
costs thereafter. USER and CITY shall execute a separate
agreement in which USER will grant to CITY at no cost to CITY an
easement or license across USER's property to provide reasonable
access for the construction, installation and maintenance of the
Pump Station. Such agreement will be attached hereto within sixty
(60) days of the execution of this Agreement as Exhibit ."
IN WITNESS WHEREOF, the parties herein have executed this Amendment to
Agreement as of the date set forth above.
APPROVED AS TO FORM:
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
By:
General Counsel
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
A
City Clerk
•
By:
President •
By:
General Manager
CITY OF NEWPORT BEACH
a Municipal corporation
am
THE NEWPORT BEACH COUNTRY CLUB,
a California Corporation
2
6
President
City Manager
1]
AGREEMENT BETWEEN ORANGE COUNTY WATER DISTRICT,
. CITY OF NEWPORT BEACH AND
NEWPORT BEACH COUNTY CLUB
REGARDING RETROFITTING IRRIGATION FACILITIES
AT NEWPORT BEACH COUNTRY CLUB
FOR USE OF GREEN ACRES PROJECT WATER
This Agreement (the "Agreement') is made and entered into as of
December 18, 1996, by and between the ORANGE COUNTY WATER
DISTRICT, a political subdivision of the State of California, hereinafter referred
to as "OCWD," the CITY OF NEWPORT BEACH, a municipal corporation,
hereinafter referred to as "CITY," and NEWPORT BEACH COUNTRY
CLUB, a private, non - profit mutual benefit corporation, hereinafter referred to
as "USER."
R E C I T A L S
A. OCWD is the producer of reclaimed water from the Green Acres
Project, hereinafter referred to as "Project Water." CITY has agreed to buy
• Project Water from OCWD and resell it to end -users pursuant to the terms and
conditions specified in that certain Agreement between Orange County Water
District and City of Newport Beach Regarding Distribution and Sale of Green
Acres Project Water, dated as of January 16, 1991.
B. USER currently purchases potable water from CITY for its own use
at the Newport Beach Country Club, Newport Beach, California.
C. USER has agreed to purchase Project Water from CITY for
allowable, suitable nonpotable uses, specifically landscape irrigation of its golf
course and certain related facilities (hereinafter referred to as the "SITE ") in lieu
of potable water currently purchased from CITY except for the irrigation of
putting greens, the perimeter of selected fairways located adjacent to
residences, and elsewhere on the SITE as agreed to by USER and CITY and
within acceptable State Health Department standards, as set forth in that certain
"Third Amended and Restated Agreement; Green Acres Reclaimed Water
Project End -User Agreement for delivery and sale of reclaimed water to
•
C/)
0 0
Newport Beach Country Club" (the "End -User Agreement ") dated as of
September 30, 1996, by and between CITY and USER.
D. USER acknowledges the benefit of receiving Project Water for use
as irrigation water at the SITE.
E. OCWD and CITY acknowledge the benefit of having USER
receive Project Water during the time period specified herein.
F. OCWD and CITY acknowledge that USER will incur substantial
costs for retrofitting the existing irrigation system for the use of Project Water at
the SITE.
AGREEMENT
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions herein contained, the parties hereto agree as .
follows:
1. USER has agreed to receive Project Water subject to the terms
and conditions of the End -User Agreement. OCWD and CITY have agreed to
pay USER for the retrofit of USER's irrigation system. Those payments are set
forth herein.
2. OCWD shall (a) contribute to USER Two Hundred Thousand
Dollars ($200,000) in immediately available funds on March 1, 1997, and (b) be
responsible for the design and construction of the Project Water service
connection and bear all costs associated therewith.
3. CITY shall (a) contribute to USER Forty -One Thousand Dollars
($41,000) in immediately available funds on July 1, 1997, (b) pay for the
construction and maintenance of the Pump Station on the SITE, and (c)
reimburse USER for the energy costs associated with the Pump Station for ten
(10) years following the date Project Water is provided to the SITE. •
J-)
0 0
4. USER acknowledges that OCWD's and CITY's contributions
towards preparing the SITE for the use of Project Water represents a significant
expenditure of public funds. Therefore, in the event USER abandons the use of
Project Water within ten (10) years from the day and year first above written
except as provided below, USER shall reimburse OCWD and CITY for said
contributions in Sections 2 and 3 above, respectively (each, the "Principal ")
less the Principal Forgiven (defined herein as ten percent (10 %) of Principal per
year for each year Project Water is used), plus the cumulative interest (defined
herein as six percent (6 %) compounded annually from the date such Principal
was provided to USER) on the Residual Principal (defined herein as Principal
less Principal Forgiven) at the time of abandonment, as set forth in Exhibits A
and -B respectively, attached hereto and incorporated herein. Abandonment of
Project Water shall be understood to mean usage of Project Water which is less
than 50 acre -feet in any twelve (12) month period. USER shall be exempt from
said reimbursement requirement if USER abandons the use of Project Water
pursuant to Sections 2, 4, 13 or 14 of the End -User Agreement.
• 5. This Agreement and the rights and benefits of OCWD and CITY
hereunder may be assigned or transferred by OCWD and CITY to any entity that
assumes the responsibilities and obligations of OCWD and /or CITY for the sale
and distribution of Project Water, provided, however, that OCWD and CITY shall
remain fully liable for all of the responsibilities and obligations of OCWD and
CITY hereunder, respectively. USER shall not assign or transfer the rights and
benefits of USER under this Agreement to any entity without the prior written
consent of OCWD and CITY, which consent shall not be unreasonably withheld
or delayed.
B. In the event that any party hereto brings any action, suit, arbitration
or other proceeding against another party arising out of or relating to the subject
matter of this Agreement, its validity or any of the terms or provisions hereof,
then the prevailing party in such action, suit, arbitration or other proceeding
shall recover from the other party its reasonable attorneys' fees and costs
incurred in connection therewith, in addition to any other relief to which it may
• be entitled. Said attorneys' fees shall include such fees for prosecuting or
defending any appeal and shall be recoverable and awarded for any
supplemental proceedings until the final judgment is satisfied in full.
rti�D
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0
7. This Agreement is conditioned upon USER obtaining from Dr.
Dale Devitt by December 31, 1996 an opinion that the Project Water to be
provided by CITY to USER within the parameters set forth in Exhibit B to the
End -User Agreement may be used by USER without any measurable adverse
consequences (financial or otherwise to the SITE.
8. The term of this Agreement shall be for ten (10) years from the day
and year above written. The parties do hereby agree that any portion of this
Agreement may be revised by written amendment at any time by mutual
agreement of the parties hereto.
9. All notices, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties
hereto under this Agreement shall be personally served or deposited in the
United States mail depository first class postage prepaid, and addressed as
follows: •
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728 -8300
Attention: General Manager
CITY: City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Newport Beach Country Club
1600 E. Coast Hwy
Newport Beach, CA 92660 •
Attention: General Manager
0
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•
9
or such other address as the parties shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete forty -eight (48) hours
after depositing in United States mail depository.
10. This Agreement, and all of the provisions herein, shall be binding
upon and inure to the benefit of OCWD, CITY and USER.
LJ
IN WITNESS WHEREOF, the parties herein have executed this .
Agreement as of the date set forth above.
APPROVED AS TO FORM:
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
By: By:
General Counsel
M
CITY OF NEWPORT BEACH,
a municipal corporation
Robert Burnham, Esq.
City Attorney
ATTEST:
LaVonne Harkless
City Clerk
NEWPORT BEACH COUNTRY CLUB,
a private corporation
President
SZ
President
General Manager
Kevin J. Murphy
City Manager
0
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EXHIBIT A
GREEN ACRES PROJECT
NEWPORT BEACH COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE ORANGE COUNTY WATER DISTRICT
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (OCWD Funding) $200,000.00
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
ABANDONMENT PRINCIPAL
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
TOTAL
INTEREST POTENTIAL DEBT
1st Year
$200,000.00
$12,000.00
$212,000.00
2nd Year
$180,000.00
$29,952.00
$209,952.00
3rd Year
$160,000.00
$41,552.00
$201,552.00
4th Year
$140,000.00
$50,470.00
$190,470.00
5th Year
$120,000.00
$56,316.00
$176,316.00
r.
6th Year
$100,000.00
$58,690.00
$158,690.00
7th Year
$ 80,000.00
$57,104.00
$137,104.00
8th Year
$ 60,000.00
$51,054.00
$111,054.00
9th Year
$ 40,000.00
$39,960.00
$ 79,960.00
10th Year
$ 20,000.00
$23,178.00
$ 43,178.00
After 10th Year
$ 0.00
$ 0.00
$ 0.00
0 •
EXHIBIT B
GREEN ACRES PROJECT
NEWPORT BEACH COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE CITY OF NEWPORT BEACH
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (City of Newport Beach Funding)
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
$41,000.00
6.00%
Dale Green Acres Water First Served
Ten Years after Obligation Commences
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•
TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL DEBT
1st Year
$41,000.00
$ 2,460.00
$43,460.00
2nd Year
$36,900.00
$ 6,140.16
$43,040.16
3rd Year
$32,800.00
$ 8,518.16
$41,318.16
4th Year
$28,700.00
$10,346.35
$39,046.35
5th Year
$24,600.00
$11,544.78
$36,144.78
6th Year
$20,500.00
$12,031.45
$32,531.45
7th Year
$16,400.00
$11,706.32
$28,106.32
8th Year
$12,300.00
$10,466.07
$22,766.07
9th Year
$ 8,200.00
$ 8,191.80
$16,391.80
10th Year
$ 4,100.00
$ 4,751.49
$ 8,851.49
After 10th Year
$ 0.00
$ 0.00
$ 0.00
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YEW
BY THE CITY COUNCIL
CITY OF NEWPORT BEACH
SEP 2 3; "
77PROVED
Mayor & Members of the City Council
FROM: Public Works Department
September 23, 1996
CITY COUNCIL AGENDA
ITEM NO. 8
SUBJECT: GREEN ACRES END:-USER AGREEMENTS
RECOMMENDATIONS: C 30E�5
Approve the End -User Agreements and authorize the Mayor and City Clerk
to execute the agreements with:
C _3 ( Lt -1. Newport Mesa Unified School District ( NMUSD) - Corona del Mar High
1 School
C 306 - 2. The Bluffs Homeowners Association (Bluffs)
C- 311(F,
- 3. Big Canyon Country Club
C _-3 1 1-) _ 4. Newport Beach Country Club
•
DISCUSSION:
In July the City entered into an agreement with the Irvine Ranch Water District
(IRWD) and the Orange County Water District (OCWD) to build an intertie that
would allow IRWD reclaimed water to be transferred to the OCWD. This
intertie and the use of the IRWD reclaimed water by OCWD would eliminate the
need for the water to be discharged into the San Diego Creek which flows into
the Upper Newport Bay.
OCWD agreed to extend their Green Acres Project (GAP) pipeline into Newport
Beach to accept reclaimed water from the intertie if they could obtain a low
interest loan from the state. A condition for this loan requires that at least five
(5) reclaimed water users in Newport Beach commit to using GAP reclaimed
water. This commitment is to be in the form of an End -User Agreement.
At the August 14, 1995, meeting, the City Council authorized the execution of
End -User Agreements. Since that time and primarily in the last month, the
standard form End -User Agreement approved has been modified. Attached are
copies of the End -User Agreements with NMUSD - Corona del Mar High School,
The Bluffs Homeowners Association, Big Canyon Country Club and the
Newport Beach Country Club. A cover sheet is attached to each agreement
providing information on the modifications that were made.
. The fifth End -User is the City which will use GAP reclaimed water in the Bonita
Creek and East Bluff parks and possibly for the Jamboree Road medians.
0 Page 2
Green Acres Project End -User Agreements
September 23. 1996
To utilize reclaimed water for an irrigation system, it is necessary to retrofit the •
existing system. The retrofit program makes sure the irrigation system
utilizing the reclaimed water is separated from the potable water system. In
some instances, all new piping is required. The retrofit program will be funded
by the owners or with loans from OCWD or the City. As an incentive to convert
to GAP water, the City will sell the water at 80% of the potable water rate. If
the City loans money to a user for retrofitting, the GAP water rate will be 95%
of the potable rate until the loan is paid back.
The NMUSD and The Bluffs have approved the agreements. It is anticipated
that the Big Canyon Country Club and the Newport Beach Country Club will
approve their agreements before the Council meeting.
STAFF RECOMMENDATION:
Staff recommends approval of the "End- User" agreements for
NMUSD and the Bluffs and requests approval for the Mayor and City Clerk to
execute these and the Big Canyon Country Club and Newport Beach Country
Club End -User Agreements on behalf of the City.
Respectfully submitted,
(;>k
PUBLIC WORKS DIRECTOR •
Don Webb, Director
By: �J, I.,
MFicpdel J. Sinacori, P.E.
Utilities Engineer
MJS:cja
Attachments: Summaries of Modifications for each End -User Agreement
Final End -User Agreements for Newport Mesa School District (CDM High School)
and The Bluffs Homeowners Association.
Draft End -User Agreements for Big Canyon Country Club and Newport Beach Country Club.
•
�1
0 0
GREEN ACRES
• RECLAIMED WATER PROJECT
END -USER AGREEMENT MODIFICATIONS
NEWPORT BEACH COUNTRY CLUB
• Added expanded indemnification clauses that cover
Newport Beach Country Club against any damages from
the reclaimed water use. The City has a similar clause
with the OCWD protecting ourselves against any
damages.
. Minor changes with regards to quantity of water used and
time of use.
• Modifications with regards to payment schedule.
• City agrees to compensate for all permits costs, which
there should be none of.
• Monitoring clauses have been eliminated.
• Added an arbitration clause instead of Attorney's Fee's
and Expenses clause.
0
!1
• i
GREEN ACRES
RECLAIMED WATER PROJECT 0
END -USER AGREEMENT MODIFICATIONS
NEWPORT -MESA UNIFIED SCHOOL DISTRICT
(CORONA DEL MAR HIGH SCHOOL)
• Added indemnification clauses that cover Newport Mesa
Unified School District against any damages from the
reclaimed water use. The City has a similar clause with
the OCWD protecting ourselves against any damages.
• Minor changes with regards to quantity of water used and •
time of use.
• Modifications with regards to payment schedule.
• City agrees to compensate for all permits costs, which
there should be none of.
• Monitoring clauses have been modified to allow for
access only. Previous clauses had provisions for
installation of a water quality monitoring well.
n
U
GREEN ACRES
• RECLAIMED WATER PROJECT
END -USER AGREEMENT MODIFICATIONS
THE BLUFFS HOMEOWNERS ASSOCIATION
• Added indemnification clauses that cover the Bluffs
Homeowners Association against any damages from the
reclaimed water use. The City has a similar clause with
the OCWD protecting ourselves against any damages.
• Minor changes with regards to quantity of water used and
. time of use.
• Modifications with regards to payment schedule.
• City agrees to compensate for all permits costs, which
there should be none of.
• Monitoring clauses have been modified to allow for
access only. Previous clauses had provisions for
installation of a water quality monitoring well.
0
J
0 0
GREEN ACRES
RECLAIMED WATER PROJECT 0
END -USER AGREEMENT MODIFICATIONS
BIG CANYON COUNTRY CLUB
• Added expanded indemnification clauses that cover Big
Canyon Country Club against any damages from the
reclaimed water use. The City has a similar clause with
the OCWD protecting ourselves against any damages.
Minor changes with regards to quantity of water used and
time of use. •
Modifications with regards to payment schedule.
• City agrees to compensate for all permits costs, which
there should be none of.
• Monitoring clauses have been eliminated.
Added an arbitration clause instead of Attorney's Fee's
and Expenses clause.
�� 1
0
A�GREEMEAT
is GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
NEWPORT -MESA UNIFIED SCHOOL DISTRICT
THIS AGREEMENT made and entered into as of _ September, 1996, by and
between the City Of Newport Beach, a Municipal Corporation and charter City, hereinafter
referred to as "City," and Newport-Mesa Unified School District, California Public School
District, hereinafter referred to as "User".
RECITALS
1. The City is the exclusive retail water purveyor, including water for residential,
industrial, commercial, public agency, agricultural and other uses within the City's
boundaries, and produces and distributes water in part purchased from
Metropolitan Water District ( "MWW) of Southern California and in part produced
from the Orange County ground water basin; the basin is managed by the Orange
County Water District ("OCWD ").
2. User is a California Public School District within the jurisdictional and service
boundaries of the City, and currently purchases potable water from the City for its
• own use at Corona Del Mar High School (athletic fields only) hereinafter, referred
to as "Sites!
3. City has agreed to buy reclaimed water from OCWD and resell such reclaimed
water to various large volume water customers. OCWD operates a water
reclamation project known as the Green Acres Project ( "GAP "). GAP is being
extended into the City's service area for the purpose of conserving and beneficially
reusing wastewater received by OCWD from the County Sanitation Districts of
Orange County, such wastewater having been treated, transported and sold by
OCWD as "GAP Water" to the City to be resold to Users. GAP Water is suitable for
use in landscape and agricultural irrigation, and industrial and construction
purposes, in lieu of potable water.
4. User desires to purchase GAP water from the City for allowable, suitable
nonpotable uses, specifically, for landscape irrigation, in lieu of potable water
currently purchased from the City.
5. The City is willing to sell GAP water to User.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions herein contained, the parties hereto.agree as follows:
0
GAP End -User Agreement
ewport-Mesa Unified School District
September, 1996
1. TRANSMISSION PIPELINE FACILITY
A transmission pipeline will be constructed by OCWD as part of GAP, that will convey •
GAP water to various locations within the City boundaries, including the Site. All
GAP water will originate from the Green Acres Project Water Treatment Facility,
located at the offices of OCWD at 10500 Ellis Avenue, Fountain Valley, California.
OCWD owns the main transmission pipeline facility and service line which serves
User upstream of the City's reclaimed water service meter vault. The OCWD pipeline
facility and service lines shall be referred to herein as "Project Facilities.° City owns,
operates and maintains all reclaimed water service meter vault piping, by -pass line
piping, service meter vault, service meter and control valves, collectively hereinafter
such facilities shall be referred to as "City Facilities." User owns and maintains the
pipeline, (e.g., pressure regulator, pressure regulator vault, control valve, control
valve vault, check valve, warning signs, warning tags, etc.) and all appurtenances
downstream of the City's reclaimed water service meter vault, hereinafter such
facilities shall be referred to as "On -Site Facilities." The point where User's piping
connects to downstream end of the City's reclaimed water service meter vault shall
hereinafter be referred to as the "Point of Connection." That portion of the Project
Facilities and City Facilities located within the City's boundaries will be operated and
maintained by the City as a contractor for OCWD for the purpose of distributing GAP
water to be purchased from the City by User. User shall also own and maintain all
devices on User's Site potable water system including, but not limited to, (drinking
fountain covers, backflow preventers, identification tags, etc.)
2. RULES AND REGULATIONS •
User agrees that during the term of this Agreement and any extension thereof, User
shall comply with all rules and regulations promulgated now and in the future by the
City relative to the sale and use of GAP water and those rules and regulations
promulgated now and in the future by OCWD relative to the transportation and use of
GAP water, hereinafter referred to as "Project Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
The City agrees to supply GAP water to User, and User agrees to purchase, on an
annual basis, thirty (30) acre -feet, as a minimum, , which is based on fifty (50)
percent of the average annual use at the Site. GAP water flow demands to the Site
shall not exceed an instantaneous maximum flow of three hundred and twenty (320)
gallons per minute By entering into this Agreement, the City's performance of this
Agreement shall at all times be conditioned upon the continuous operation of the
Project Facilities by OCWD. To the extent that User's current use of its property
necessitates the use of GAP water, User will continue to purchase GAP water. In the
event that the current use of the property discontinues or is modified, User may
modify or terminate this Agreement as applicable, subject to the conditions set forth
in Section 13 of this Agreement.
Page 2 of 11
0
GAP End -User Agreement
OWPOrt-Mesa Unified School District
September, 1996
. If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, the City reserves the
right, and has the authority, to take action to insure that the situation shall be
remedied, and to protect the public health, as further set forth in the Project Rules.
Such remedies may include, but shall not be limited to, the right of the City to
terminate GAP water service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
The City agrees, subject to compliance by OCWD, that all GAP water delivered to
User from the Project Facilities pursuant to this Agreement shall conform to the
current and future requirements established by the California Regional Water Quality
Control Board - Santa Ana Region, state and local health departments, and federal,
state and county agencies, hereinafter referred to as °Regulatory Agencies," having
jurisdiction to fix minimum standards for the quality of water, with respect to User's
anticipated use.
GAP water shall be delivered on a continuous basis at a pressure of not less than
sixty pounds per square inch (60 psi) for the Site at the Point of Connection between
the hours of 9:00 p.m. and 6:00 a.m. User shall not exert demand for GAP water
between the hours of 6:00 a.m. and 9:00 p.m without User's trained maintenance
personnel or designated representative being present.
• S. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by User for GAP water delivered
by the City shall not exceed eighty percent (80 %) of the City's retail rate for potable
water, as established by resolution of the City Council and enforced on the date of
delivery of GAP water. The retail rate for potable water shall be subject to
modification as determined by and within the discretion of the City Council. At least
10 days prior to the adoption of a resolution establishing the water rate of the City
and/or modifying the purchase price of GAP water, the City shall give written notice to
User of a hearing on the resolution and price which shall apply following adoption of
said resolution. Failure to give notice shall not invalidate the action of the City
Council.
6. METERING AND MEASUREMENT OF FLOWS
User agrees that at locations where irrigation water is used exclusively, the City shall
maintain, at its own expense, control valves and meters (sized at four - inches [4 "]) for
Corona Del Mar High School for the purpose of measuring the quantity of GAP water
delivered pursuant to the terms of this Agreement from the City to User at the Point of
Connection where such water is delivered to User. The City shall read the service
meters and record GAP water usage for User on a monthly basis. OCWD shall be
given access to said service meters to take readings.
Page 3 of 11
• GAP End -User Agreement
gewport-Mesa Unified School District
September, 1996
7. PAYMENT FOR PROJECT WATER
The City shall invoice User for the price of the GAP water purchased by User every •
other month, as part of the City's regular billing cycle. Said invoices shall be paid
within thirty (30) days of the billing date.
8. LIMITATION OF USE
User understands and agrees that GAP water delivered from OCWD's Project
Facilities pursuant to the terms hereof has restricted uses, and User agrees to use
such only upon the property of User and only for those uses and purposes provided
for herein which are legally permissible under the laws of the state, the Project Rules
and rules adopted by the City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD and User obtaining the necessary permits
relating to the use of GAP water for landscape irrigation. User agrees to file any and
all applications and undertake such proceedings as may be necessary to enable
OCWD, the City and User to carry out the undertaking described herein, and to
pursue such application and proceedings in good faith and with due diligence,
including any application required to be issued to OCWD by Regulatory Agencies.
User understands and agrees that User, where applicable, will comply with the
regulations set forth in permits and any fees will be paid for by the City or OCWD.
10. CONDITIONS PRECEDENT •
This Agreement is conditioned upon OCWD's completing and making GAP
operational , including: (1) transmission pipeline extension to User; (2) OCWD
making GAP water available for sale; and (3) issuance of all necessary permits,
certificates and approvals by all Regulatory Agencies having jurisdiction over the
construction and operation of water reclamation facilities and over the production,
distribution, sale and use of GAP water. This Agreement is conditioned further upon
OCWD's being able to acquire acceptable right -of -way access from the Project
Facilities to the Site for transportation pipeline purposes, and is further conditioned
upon approval by Regulatory Agencies or agencies having grant funding
responsibilities with regard to the Project Facilities.
11. CONDITIONS SUBSEQUENT
In the event that the City is unable to deliver GAP water through Project Facilities, the
City reserves the right to notify User a minimum of 24 hours advance notice, except
in the event of emergencies, that said deliveries shall temporarily cease. The City
shall provide User with a minimum of 24 hours advance notice when resumption of
GAP water delivery is expected at User's Site. In the event the City is unable to
provide delivery of GAP water, the City will provide water to User from alternative
sources at the full potable water rate, subject to the right of the City to determine
allocation of all water, both GAP and potable, in the event of emergencies. •
Furthermore, in the event that OCWD ceases producing and distributing GAP water
Page 4 of 11
GAP End -User Agreement
Owport-Mesa Unified School District
September, 1996
. or in the event that the treatment criteria imposed by any Regulatory Agency exceeds
those existing as of the date of this Agreement, the City shall have the option of
canceling this Agreement. The City shall convert service on the Site back to a
potable water system(s) at no expense to User if this Agreement is canceled by the
City within ten (10) years immediately following the date hereof. The cost of
conversion back to a potable water system shall be borne by User if said conversion
occurs after ten (10) years from the date of this Agreement.
12. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of GAP water from the
Green Acres Project beyond that usable by User. The City reserves the right to enter
into contracts with others for the sale of any GAP water.
13. TERM
The term of this Agreement shall be ten (10) years from the day and year first above
written. The parties do hereby agree that any portion of this Agreement may be
revised by written amendment at any time by mutual agreement of the parties hereto.
The parties do hereby also agree that one (1) year prior to the end of the term of this
Agreement, all of the terms herein shall be reviewed, and if all of the terms are
mutually agreed upon following such review, this Agreement shall be renewed.
• 14. ASSIGNMENT
This Agreement and the rights and benefits of the City hereunder may be assigned
and transferred by the City to any entity which assumes the responsibilities and
obligations of the City for the sale and distribution of GAP water to the User.
15. INDEMNIFICATION
City shall indemnify, defend and save User harmless from and against, any and
all liability, loss, cost, expense or damage sustained by or to any person or
property and proximately caused by:
(a) Any act, neglect, default or omission of City or any of its officers, agents,
employees or representatives related to the performance of duties
pursuant to this Agreement.
(b) The design, construction, operation, or maintenance of any City facilities
installed or constructed pursuant to this Agreement; or
(c) The distribution or sale to User of GAP water that does not meet quality
standards specified in Title 22 of the California Code of Regulations.
•
Page 5 of 11
( )
GAP End -User Agreement
sewport-Mesa Unified School District
September, 1996
If User is sued for damages by reason of any of the acts, omissions or activities for
which City is required to indemnify User pursuant to this Section, City shall defend •
the action at its own expense and shall pay any judgment that may be rendered. In
the event City fails or neglects to defend User in the Action, User may defend the
action and any expenses, including reasonable attorneys' fees and cost which User
pays or incurs in defending the action, and the amount of any judgment which User
may be required to pay, shall be promptly reimbursed by City upon demand.
The indemnification, defense and hold harmless obligations of City specified in this
Section do not extend to damages, losses, injuries, lawsuits or claims resulting from
the acts or omissions of User or its officers, agents, representatives and employees.
16. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or other
proceeding against the other party arising out of or relating to the subject matter of
this Agreement, its validity or any of the terms or provisions thereof, then the
prevailing party in such action, suit, arbitration or other proceeding shall recover from
the other party its reasonable attorneys' fee costs incurred in connection therewith, in
addition to any other relief to which it may be entitled. Said attorneys' fees shall
include such fees for prosecuting or defending any appeal and shall be recoverable,
and awarded for any supplemental proceedings until the final judgment is satisfied in
full.
17. NOTICES .
All notices, payments, transmittals of documentation and other writings required or
permitted to be delivered or transmitted to either of the parties hereto under this
Agreement shall be personally served or deposited in the United States mail
depository first class postage prepaid, and addressed as follows:
City: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Don Webb
Public Works Director
User: Newport-Mesa Unified School District
2985 -A Bear Street
Costa Mesa, CA 92626
Attention: Carolyn B. Stocker, Executive Director
Business Services & Auxiliary Operations
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September, 1996
or such other address as the City or User shalt direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after depositing in
United States mail depository.
18. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon and inure to
the benefit of the City and User, and their respective successors and assigns.
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GAP End -User Agreement
ewport-Mesa Unified School District
September, 1996
IN WITNESS WHEREOF, the parties herein have executed this Agreement as of
the date set forth above. •
APPROVED AS TO FORM: City of Newport Beach,
a municipal corporation
Robin Clauson John Hedges
Assistant City Attorney Mayor
ATTEST:
LaVonne Harkless
City Clerk
Newport -Mesa Unified School District
a private corporation
Carolyn B. Stocker, Executive Director
Business Services & Auxiliary Operations
Page 8 of 11
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ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
GAP End -User Agreement
tewport-Mesa Unified School District
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT -MESA
UNIFIED SCHOOL DISTRICT REGARDING DELIVERY AND SALE OF GREEN ACRES
PROJECT WATER AT CORONA DEL MAR HIGH SCHOOL (ATHLETIC FIELDS ONLY)
entered into as of _ September, 1996, by and between the City of Newport Beach, as the
Retailer of GAP Water, and Newport-Mesa Unified School District, as the User of GAP
Water, for delivery and sale of GAP Water to Corona Del Mar High School (athletic fields
only) , Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel
0
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President
General Manager
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AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT .
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
THE BLUFFS HOMEOWNERS ASSOCIATION
THIS AGREEMENT is made and entered into as of _ September, 1996 by and
between the City Of Newport Beach, a Municipal Corporation and charter City, hereinafter
referred to as "City," and the Bluffs Homeowners Association, a Private Corporation,
hereinafter referred to as "User.*
RECITALS
1. The City is the exclusive retail water purveyor, including water for residential,
industrial, commercial, public agency, agricultural and other uses within the City's
boundaries, and produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
from the Orange County ground water basin; the basin is managed by the Orange
County Water District ( "OCWD ").
2. User is a private corporation within the jurisdictional and service boundaries of the
City, and currently purchases potable water from the City for its own use within the
common areas of the Bluffs Greenbelt, Newport Beach, California, hereinafter,
referred to as "Site."
3. City has agreed to buy reclaimed water from OCWD and resell such reclaimed
water to various large volume water customers. OCWD operates a water
reclamation project known as the Green Acres Project ( "GAP "). GAP is being
extended into the City's service area for the purpose of conserving and beneficially
reusing wastewater received by OCWD from the County Sanitation Districts of
Orange County, such wastewater having been treated, transported and sold by
OCWD as "GAP water" to the City to be resold to Users. GAP water is suitable for
use in landscape and agricultural irrigation, and industrial and construction
purposes, in lieu of potable water.
4. User desires to purchase GAP water from the City for allowable, suitable
nonpotable uses, specifically, for landscape irrigation, in lieu of potable water
currently purchased from the City.
5. The City is willing to sell GAP water to User.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions herein contained, the parties hereto agree as follows:
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• GAP End -User Agreement
013luffs Homeowners Association
September, 1996
. 1. TRANSMISSION PIPELINE FACILITY
A transmission pipeline will be constructed by OCWD as part of GAP, that will convey
GAP water to various locations within the City boundaries, including the Site. All GAP
water will originate from the Green Acres Project Water Treatment Facility, located at
the offices of OCWD at 10500 Ellis Avenue, Fountain Valley, California. OCWD
owns the main transmission pipeline facility and service line which serves User
upstream of the City's reclaimed water service meter vault. The OCWD pipeline
facilities and service lines shall be referred to herein as "Project Facilities." City
owns, operates and maintains all reclaimed water service meter vault piping, by-
pass line piping, service meter vault, service meter and control valves, collectively
hereinafter such facilities shall be referred to as "City Facilities.° User owns and
maintains the pipeline, (e.g., pressure regulator, pressure regulator vault, control
valve, control valve vault, check valve, warning signs, warning tags, etc.) and all
appurtenances downstream of the City's reclaimed water service meter vault,
hereinafter such facilities shall be referred to as "On -Site Facilities." The point where
User's piping connects to downstream end of the City's reclaimed water service
meter vault shall hereinafter be referred to as the "Point of Connection." That portion
of the Project Facilities and City Facilities located within the City's boundaries will be
operated and maintained by the City as a contractor for OCWD for the purpose of
distributing GAP water to be purchased from the City by User. User shall also own
and maintain all devices on User's Site potable water system including, but not
limited to, drinking fountain covers, backflow preventers, identification tags, etc.
2. RULES AND REGULATIONS
User agrees that during the term of this Agreement and any extension thereof, User
shall comply with all rules and regulations promulgated now and in the future by the
City relative to the sale and use of GAP water and those rules and regulations
promulgated now and in the future by OCWD relative to the transportation and use of
GAP water, hereinafter referred to as "Project Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
The City agrees to supply GAP water to User, and User agrees to purchase GAP
water. The anticipated average annual GAP water usage at Site is estimated to be
one hundred sixty (160) acre -feet. GAP water flow demands to the Site's three
services (1720 S. Vista Del Oro, 2052 S. Vista Del Oro, and 2150 S. Vista Del Oro)
shall not exceed an instantaneous maximum combined flow of nine hundred and
sixty (960) gallons per minute from the three meters. By entering into this
Agreement, the City's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD. To the
extent that User's current use of its property necessitates the use of GAP water, User
will continue to purchase GAP water. In the event that the current use of the property
discontinues or is modified, User may modify or terminate this Agreement as
• applicable, subject to the conditions set forth in Section 13 of this Agreement.
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GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
If at any time during construction or operation of the On -Site Facilities, real or •
potential hazards, or evidence of a hazard, are found to exist, the City reserves the
right, and has the authority, to take action to insure that the situation shall be
remedied, and to protect the public health, as further set forth in the Project Rules.
Such remedies may include, but shall not be limited to, the right of the City to
terminate GAP water service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
The City agrees, subject to compliance by OCWD, that all GAP water delivered to
User from the Project Facilities pursuant to this Agreement shall conform to the
current and future requirements established by the California Regional Water Quality
Control Board - Santa Ana Region, state and local health departments, and federal,
state and county agencies, hereinafter referred to as "Regulatory Agencies," having
jurisdiction to fix minimum standards for the quality of water, with respect to User's
anticipated use.
GAP water shall be delivered on a continuous basis at a pressure of not less than
sixty pounds per square inch (60 psi) at the Point of Connection between the hours
of 9:00 p.m. and 6:00 a.m. User shall not exert demand for GAP water between the
hours of 6:00 a.m. and 9:00 p.m., without User's trained maintenance personnel or
designated representative being present.
5. PRICE OF PROJECT WATER •
For the term of this Agreement, the price to be paid by User for GAP water delivered
by the City shall not exceed eighty percent (80 %) of the City's retail rate for potable
water, as established by resolution of the City Council and enforced on the date of
delivery of GAP water. The retail rate for potable water shall be subject to
modification as determined by and within the discretion of the City Council. At least
10 days prior to the adoption of a resolution establishing the water rate of the City
and /or modifying the purchase price of GAP water, the City shall give written notice to
User of a hearing on the resolution and price which shall apply following adoption of
said resolution. Failure to give notice shall not invalidate the action of the City
Council.
6. METERING AND MEASUREMENT OF FLOWS
User agrees that at locations where irrigation water is used exclusively, the City shall
maintain, at its own expense, a control valve or valves and two (2) four -inch (4 ")
meters and one (1) six -inch (6") meter for the purpose of measuring the quantity of
GAP water delivered pursuant to the terms of this Agreement from the City to User at
the Point of Connection where such water is delivered to User. The City shall read
the service meters and record GAP water usage for User on a monthly basis. OCWD
shall be given access to said service meters to take readings.
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• GAP End -User Agreement
*Bluffs Homeowners Association
September, 1996
7. PAYMENT FOR PROJECT WATER
The City shall invoice User for the price
other month, as part of the City's regula r
within thirty (30) days of the billing date.
8. LIMITATION OF USE
of the GAP water purchased by User every
billing cycle. Said invoices shall be paid
User understands and agrees that GAP water delivered from OCWD's Project
Facilities pursuant to the terms hereof has restricted uses, and User agrees to use
such only upon the property of User and only for those uses and purposes provided
for herein which are legally permissible under the laws of the state, the Project Rules
and rules adopted by the City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD and User obtaining the necessary permits
relating to the use of GAP water for landscape irrigation. User agrees to file any and
all applications and undertake such proceedings as may be necessary to enable
OCWD, the City and User to carry out the undertaking described herein, and to
pursue such application and proceedings in good faith and with due diligence,
including any application required to be issued to OCWD by Regulatory Agencies.
User understands and agrees that User, where applicable, will comply with the
regulations set forth in permits and any fees will be paid for by the City or OCWD.
10. MONITORING
The City's responsibility for managing and monitoring the GAP water produced and
delivered hereunder shall cease upon delivery to User at the Point of Connection.
Managing and monitoring with respect to the storage and distribution of GAP water
under the control of User shall be the responsibility of User. User further agrees to
allow the City, Regulatory Agencies and/or OCWD's representatives to enter User's
Site for monitoring, sampling, analysis and observation of User's On -Site Facilities.
User understands and agrees that groundwater_underlying the Site may also need to
be monitored for quality. User and OCWD shall locate a mutually agreeable place
on the Site to construct a groundwater monitoring well as required by Regulatory
Agencies. At no expense to the City or OCWD, User shall provide easement(s) to
OCWD to construct, at no expense to the City or User, a groundwater monitoring well
on the Site. User shall provide OCWD with access to such monitoring well for the
purpose of carrying out all groundwater monitoring activities.
11. CONDITIONS PRECEDENT
This Agreement is conditioned upon OCWD's completing and making GAP
operational, including: (1) transmission pipeline extension to User; (2) OCWD
making GAP water available for sale; and (3) issuance of all necessary permits,
Page 4 of 9
GAP End -User Agreement
*Bluffs Homeowners Association
September, 1996
certificates and approvals by all Regulatory Agencies having jurisdiction over the •
construction and operation of water reclamation facilities and over the production,
distribution, sale and use of GAP water. This Agreement is conditioned further upon
OCWD's being able to acquire acceptable right -of -way access from the Project
Facilities to the Site for transportation pipeline purposes, and is further conditioned
upon approval by Regulatory Agencies or agencies having. grant funding
responsibilities with regard to the Project Facilities.
12. CONDITIONS SUBSEQUENT
In the event that the City is unable to deliver GAP water through Project Facilities, the
City reserves the right to notify User a minimum of 24 hours advance notice, except
in the event of emergencies, that said deliveries shall temporarily cease. The City
shall provide User with a minimum of 24 hours advance notice when resumption of
GAP water delivery is expected at User's Site. In the event the City is unable to
provide delivery of GAP water, the City will provide water to User from alternative
sources at the full potable water rate, subject to the right of the City to determine
allocation of all water, both GAP and potable, in the event of emergencies.
Furthermore, in the event that OCWD ceases producing and distributing GAP water
or in the event that the treatment criteria imposed by any Regulatory Agency exceeds
those existing as of the date of this Agreement, the City shall have the option of
canceling this Agreement. The City shall convert service on the Site back to a
potable water system(s) at no expense to User if this Agreement is canceled by the
City within fifteen (15) years immediately following the date hereof. The cost of .
conversion back to a potable water system shall be borne by User if said conversion
occurs after fifteen (15) years from the date of this Agreement.
13. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of GAP water from the
Green Acres Project beyond that usable by User. The City reserves the right to enter
into contracts with others for the sale of any GAP water.
14. TERM
The term of this Agreement shall be fifteen (15) years from the day of first use of GAP
water at Site. The parties do hereby agree that any portion of this Agreement may be
revised by written amendment at any time by mutual agreement of the parties hereto.
The parties do hereby also agree that one (1) year prior to the end of the term of this
Agreement, all of the terms herein shall be reviewed, and if all of the terms are
mutually agreed upon following such review, this Agreement shall be renewed.
15. ASSIGNMENT
This Agreement and the rights and benefits of the City hereunder may be assigned
and transferred by the City to any entity which assumes the responsibilities and
obligations of the City for the sale and distribution of GAP water to the User.
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INDEMNIFICATION
GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
City shall indemnify, defend and save User harmless from and against, any and
all liability, loss, cost, expense or damage sustained by or to any person or
property and proximately caused by:
(a) Any act, neglect, default or omission of City or any of its officers, agents,
employees or representatives related to the performance of duties
pursuant to this Agreement.
(b) The design, construction, operation, or maintenance of any City facilities
installed or constructed pursuant to this Agreement; or
(c) The distribution or sale to User of GAP water that does not meet quality
standards specified in Title 22 of the California Code of Regulations.
If User is sued for damages by reason of any of the acts, omissions or activities
for which City is required to indemnify User pursuant to this Section, City shall
defend the action at its own expense and shall pay any judgment that may be
rendered. In the event City fails or neglects to defend User in the Action, User
may defend the action and any expenses, including reasonable attorneys' fees
and cost which User pays or incurs in defending the action, and the amount of
any judgment which User may be required to pay, shall be promptly reimbursed
by City upon demand.
The indemnification, defense and hold harmless obligations of City specified in
this Section do not extend to damages, losses, injuries, lawsuits or claims
resulting from the acts or omissions of User or its cfficers, agents,
representatives and employees.
ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or other
proceeding against the other party arising out of or relating to the subject matter
of this Agreement, its validity or any of the terms or provisions thereof, then the
prevailing party in such action, suit, arbitration or other proceeding shall recover
from the other party its reasonable attorneys' fee costs incurred in connection
therewith, in addition to any other relief to which it may be entitled. Said
attorneys' fees shall include such fees for prosecuting or defending any appeal
and shall be recoverable, and awarded for any supplemental proceedings until
the final judgment is satisfied in full.
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• GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
18. NOTICES •
All notices, payments, transmittals of documentation and other writings required or
permitted to be delivered or transmitted to either of the parties hereto under this
Agreement shall be personally served or deposited in the United States mail
depository first class postage prepaid, and addressed as follows:
City: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Don Webb
Public Works Director
User: The Bluffs Homeowners Association
P.O. Box 8167
Newport Beach, CA 92658 -8167
Attention: Kevin Shannon
General Manager
or such other address as the City or User shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after depositing in •
United States mail depository.
19. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon and inure to
the benefit of the City and User, and their respective successors and assigns.
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WITNESS WHEREOF, the parties herein have executed this Agreement as of the
date set forth above.
APPROVED AS TO FORM: City of Newport Beach,
a municipal corporation
Robin Clauson John Hedges
Assistant City Attorney Mayor
ATTEST: The Bluffs Homeowners Association
a private corporation
LaVonne Harkless Ron Foster
City Clerk President
Robert Orman
Secretary
Page 8 of 9
GAP End -User Agreement
*Bluffs Homeowners Association
September, 1996
ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE BLUFFS
HOMEOWNERS ASSOCIATION REGARDING DELIVERY AND SALE OF GREEN ACRES
PROJECT WATER WITHIN THE COMMON AREAS OF THE BLUFFS GREENBELT"
entered into as of September, 1996 by and between the City of Newport Beach, as
the Retailer of GAP Water, and The Bluffs Homeowners Association, as the User of GAP
Water, for delivery and sale of GAP Water to The Bluffs Homeowners Association for use
within the common areas of the Bluffs Greenbelt, Newport Beach, CA, for landscape
irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel President
de \09 -04 -96 \3:15
General Manager
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0 AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
BIG CANYON COUNTRY CLUB
THIS AGREEMENT is made and entered into this _ day of
1996 by and between the City of Newport Beach, a Municipal Corporation, hereinafter
referred to as "CITY ", and the Big Canyon Country Club, a private, non - profit mutual
benefit corporation, hereinafter referred to as "USER ".
RECITALS
1. CITY is the exclusive retail water purveyor, providing water for residential,
industrial, commercial, public agency, agricultural and other uses within CITY's
boundaries. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
. from the Orange County groundwater basin, which basin is managed by the
Orange County Water District ( "OCWD ").
2. USER is a private corporation within the jurisdictional and service boundaries of
CITY, and currently purchases potable water from CITY for its own use at Big
Canyon Country Club, One Big Canyon Drive, Newport Beach, California,
hereinafter, referred to as "SITE ".
3. CITY has agreed to buy reclaimed water from OCWD and resell such reclaimed
water pursuant to the terms and conditions specified in that certain agreement
entitled "Agreement Between Orange County Water District and City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water" dated
January 16, 1991, and as it may be subsequently amended, hereinafter
referred to as "Retailer Agreement." City executed the Retailer Agreement for
the purpose of seeking to provide its present and future residents with a
supplemental source of water to meet their needs and to assist in the statewide
objective of conserving and utilizing to the maximum degree possible the water
of the People of the State of California, which water shall be recovered from the
operation known as the "Green Acres Project" for all possible beneficial uses.
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GAP End -User Agreement
Big Canyon Country Club
September, 1996
4. The Green Acres Project is being planned for extension into CITY's service area
for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the Irvine Ranch Water District,
( "IRWD "), such wastewater having been treated by OCWD or IRWD to standards
established by the State Health Department and transported and sold by
OCWD as "Project Water" to CITY to be resold to Project Customers. Such
Project Water must be deemed suitable by State Health Department for use in
landscape and agricultural irrigation and for industrial and construction
purposes in lieu of potable water.
5. USER desires to purchase Project Water from CITY for allowable, suitable
nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities, in lieu of potable water currently purchased from CITY, and
CITY is willing to sell Project Water to USER.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the Green
Acres Project that will convey Project Water to various locations within CITY •
boundaries, including the SITE. All Project Water will originate from either the
OCWD Green Acres Project Water Treatment Facility, or a similar facility
operated by IRWD. OCWD owns the main transmission pipeline facility and
service line which serves USER upstream of CITY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CITY owns, operates and maintains all reclaimed water service
meter vault piping, by -pass line piping, service meter vault, service meter and
control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities." USER owns and maintains the pipelines, pump station,
backflow preventers, warning signs, warning tags and all appurtenances
downstream of CITY's reclaimed water service meter vault, which facilities shall
hereinafter be referred to as "On -Site Facilities" and are more fully set forth on
the drawings attached hereto as Exhibit A. The point where USER's piping
connects to the downstream end of CITY's reclaimed water service meter vault
shall hereinafter be referred to as the "Point of Connection". The Point of
Connection will be in the Jamboree Road parkway near USER's maintenance
yard entrance approximately 1,300 feet northerly of San Joaquin Hills Road.
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CITY by
USER.
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Big Canyon Country Club
September, 1996
• 2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be
referred to as "Project Rules." In the event that CITY and/or OCWD or any other
governmental agency shall promulgate any rule or regulation that shall
increase above the potable rates, the cost of USER's transportation and/or use
of Project Water as contemplated herein, USER may terminate this Agreement,
upon sixty (60) day notice to CITY and as set forth in Section 14 of this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
CITY agrees to supply Project Water to USER, and USER agrees to purchase
Project Water. Average annual Project Water usage at Site is estimated to be
three hundred and sixty (360) acre -feet. Project Water flow demands at the
SITE's service shall not exceed an instantaneous maximum flow of two
thousand two hundred (2,200) gallons per minute. By entering into this
• Agreement, CITY's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD.
In the event that the current use of the property discontinues or is modified,
USER may modify or terminate this Agreement, as applicable, subject to the
conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, CITY reserves the
right, and has the authority, to take action to insure that the situation be
remedied and to protect the public health, as further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees, subject to compliance by OCWD, that all PROJECT Water
delivered to USER from the Project Facilities pursuant to this Agreement shall
conform to (i) the current and future requirements established by the California
Regional Water Quality Control Board - Santa Ana Region, State and local
health departments, and Federal, State and county agencies having jurisdiction
to fix minimum standards for the quality of water with respect to USER's
anticipated use, which Board, health departments and agencies shall
. hereinafter be referred to as "Regulatory Agencies "; and (ii) such minimum
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standards, set by Regulatory Agencies as will prevent the Project Water from •
causing any damage to USER's property and all plants and vegetation located
thereon. if the Project Water fails to conform to the above requirements, CITY
and OCWD covenants that CITY will terminate the flow of Project Water to the
SITE and provide potable water in its place, and USER may terminate this
Agreement if standards are not met within sixty (60) days.
CITY acknowledges that excess water from USER irrigation operations and
from lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water
will drain into the Upper Newport Bay as well. CITY covenants to indemnify
USER for those costs and expenses arising out of any modification or
termination of USER's right to allow its excess water to drain into the Upper
Newport Bay when the modification or termination is ordered because of
USER's use of Project Water as contemplated herein.
Project Water shall be delivered on a continuous basis at a pressure of not less
than ninety pounds per square inch (90 psi) for demands under thirteen
hundred gallons per minute (1,300 gpm), and not less than eighty pounds per
square inch (80 psi) for demands from thirteen hundred one gallons per minute
(1,301 gpm) to two thousand two hundred gallons per minute (2,200 gpm) at the
Point of Connection between the hours of 9:00 p.m. to 6:00 a.m. USER shall not
exert a demand for Project Water between the hours of 6:00 a.m. and 9:00 p.m. •
unless USER's staff is present to ensure that the public does not come in
contact with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by USER for Project Water
delivered by CITY shall not exceed the lower of (a) eighty percent (80 %) of the
CITY's retail rate for potable water, as established by resolution of the City
Council and enforced on the date of delivery of the Project Water, or (b) the
lowest rate then offered by CITY to any purchaser of reclaimed water, whether
such rate is determined as a percentage of CITY's retail rate for potable water or
otherwise. The retail rate for potable water shall be subject to modification as
determined by and within the discretion of the City Council. At least ten (10)
days prior to the adoption of a resolution establishing the water rate of CITY
and/or modifying the purchase price of Project Water, CITY shall provide notice
as prescribed in the City Municipal Code of a public hearing on the resolution
and price which shall apply following adoption of said resolution. Failure to
give notice shall not invalidate the action of the City Council.
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• 6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY shall periodically read the service meter
and record usage of Project Water onto a schedule. OCWD shall be given
access to said service meter to take readings.
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CITY's regular billing cycle. Said invoices shall be paid within
nineteen (19) days of the billing date, CITY retains the right to change billing
cycles and due dates as necessary, upon sixty (60) days prior notice to USER,
so long as such change is consistent with formally adopted City wide practice
and procedures and State law.
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
• Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for those uses and
purposes provided for herein which are legally permissible under the laws of
the State, the Project Rules and rules adopted by CITY, by OCWD, and by
Regulatory Agencies.
•
9. COVENANTS
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's irrigation
needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project Facilities
and City Facilities have complied and will comply with all regulations
promulgated by all Regulatory Agencies and all other applicable laws.
(c) The water quality parameter limits of the Project Water during the term(s)
of this Agreement will be as shown on the chart attached hereto as
Exhibit C.
Page 5 of 12
10.
• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
(d) CITY will provide USER with all engineering support requested by •
USER, including the assistance of CITY engineers, and other staff, to
assist in the review of USER's irrigation system redesign for the purposes
contemplated herein.
(e) At CITY's cost, CITY will make presentations to USER, USER's club
members and related homeowners' associations with respect to the
Green Acres Project and Project Water.
(f) CITY acknowledges and agrees that USER may use potable water to
irrigate putting greens, the perimeter of selected fairways located
adjacent to residences, and elsewhere on the SITE as agreed to by
USER and CITY and within acceptable State Health Department
standards.
INDEMNIFICATION
CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or
demands, including (i) all consequential damages; (ii) all damages to any
natural resources, and the costs of any required or necessary repair, clean up,
response cost, or detoxification of the SITE or any portion thereof, and the
preparation and implementation of any closure, remedial or other required
plans; and (iii) all costs and expenses incurred in connection with clauses (i)
and (ii), including all attorneys' fees and expenses, whether in suit or not, which
arise directly or indirectly out of (x) the use by USER of the Project Water as
contemplated herein, (y) the existence or alleged existence of any Hazardous
Substances (as defined below) in the Project Water or (z) the removal of or
failure to remove any Hazardous Substances from the Project Water unless
such suit, claim or demand is caused by the negligence or willful misconduct of
USER, its directors, agents and employees, the negligent operation,
maintenance or repair by USER of Project Water distribution and on site
facilities; or USER's reuse or misapplication of Project Water on the Site. The
foregoing indemnity shall apply to any residual contamination on, under or
about the SITE and to any contamination of any property or natural resources
arising from the Project Water.
Upon receiving knowledge of any suit, claim or demand asserted by a third
party that USER believes is covered by this indemnity, USER shall give CITY
and OCWD notice of the matter and an opportunity to defend it, at CITY's and
OCWD's cost and expense, with legal counsel satisfactory to USER. USER
may also require CITY and OCWD to so defend the matter. CITY and OCWD
will pay all fees or penalties imposed by any Regulatory Agency or any other
governmental authority for any violation of any code, regulation or law with
respect to the transportation, use or chemical composition of the Project Water.
Page 6 of 12
•
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• GAP End -User Agreement
Big Canyon Country Club
September, 1996
. The obligations of CITY and OCWD under this Section 10 shall survive the
term(s) of this Agreement.
As used herein, "Hazardous Substances" shall mean (i) any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Law (as defined
below) as a "hazardous substance ", "hazardous material ", "hazardous waste ",
"contaminant" or any other formulation not mentioned herein intended to define,
list, or classify substances by reason of deleterious properties such as ignitabili-
ty, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP
toxicity" or "TCLP toxicity "; and (ii) any other chemical, material, or substance
that, because of its quantity, concentration, or physical or chemical
characteristics, exposure to which is limited or regulated for health and safety
reasons by any governmental authority, or which poses a significant present or
potential hazard to human health and safety or to the environment if released
into the workplace or the environment. "Environmental Law" shall mean shall
mean any and all present and future Federal, state and local laws (whether
under common law, statute or otherwise), ordinances, regulations, permits,
guidance documents, policies, and any other requirements of governmental au-
thorities relating to health, safety, the environment or to any Hazardous
Substances.
• 11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's cooperation, any and all applications and undertake such
proceedings as may be necessary to enable OCWD, CITY and USER to carry
out the undertaking described herein, and to pursue such application and
proceedings in good faith and with due diligence, including any application
required to be issued to OCWD by Regulatory Agencies. USER understands
and agrees that USER must comply with the regulations set forth in permits if
such permits apply to USER, provided that such compliance by USER shall not
materially increase the cost of Project Water or unreasonably interfere with
USER's golf course and related operations.
12. ACCESS
USER agrees to allow CITY, Regulatory Agencies and /or OCWD's
representatives to enter USER's SITE for sampling, analysis and observation of
USER's On Site Facilities.
Page 7 of 12
• GAP End -User Agreement
Big Canyon Country Club
September, 1996
13. CONDITIONS PRECEDENT •
This Agreement is conditioned upon OCWD's completing and making
operational the Green Acres Project by July 1, 1998, including the following:
(1) the transmission pipeline is extended to the Site; (2) OCWD makes Project
Water available for sale; and (3) all necessary permits, certificates and
approvals are issued by all Regulatory Agencies having jurisdiction over the
construction and operation of water reclamation facilities and over the
production, distribution, sale and use of Project Water. This Agreement is
further conditioned upon (i) OCWD's acquiring by July 1, 1998, acceptable
right -of -way access from the Project Facilities to the SITE for transportation
pipeline purposes, and (ii) OCWD and CITY gaining by July 1, 1998, the
approval by all federal, state and local agencies having regulatory jurisdiction
or grant funding responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given time limits,
USER may cancel this Agreement.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy -
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of •
twenty-four (24) hours advance notice when resumption of the delivery of
Project Water to USER's SITE is expected. In the event CITY is unable to
deliver Project Water to USER or defaults under this Agreement, CITY must
provide USER with water from alternative sources at the full potable water rate,
subject to the right of CITY to determine allocation of all water, both Project
Water and potable, in the event of emergencies. If USER terminates this
Agreement as authorized under the terms of this Agreement, CITY must provide
USER with potable water in the place of Project Water. Furthermore, in the
event that OCWD ceases producing and distributing Project Water or in the
event that the treatment criteria imposed by any Regulatory Agencies exceeds
those existing as of the date of this Agreement, either CITY or USER shall have
the option to cancel this Agreement. CITY shall convert service on the SITE
back to a potable water system(s) at no expense to USER if this Agreement is
canceled by CITY during the initial term of this Agreement or USER pursuant to
Sections 2 and 4 above. The cost of conversion back to a potable water system
shall be borne by USER if said conversion occurs after the initial term of this
Agreement.
Page a of 12
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• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
15. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The term of this Agreement shall be ten (10) years from the day and year first
above written. USER shall have the option to extend said term for two (2)
additional ten (10) year terms, provided that USER gives CITY written notice of
such election at least six (6) months prior to the expiration of the previous term.
The parties do hereby agree that any portion of this Agreement may be revised .
by written amendment at any time by mutual agreement of the parties hereto.
17. ASSIGNMENT
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
. provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without written consent from CITY and OCWD, which consent shall not
be unreasonably withheld.
18. ARBITRATION
(a) CITY, OCWD and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the written
request of any party be arbitrated pursuant to the applicable rules of the
American Arbitration Association. The arbitration shall occur in the State
of California. Judgment upon any award rendered by the arbitrator(s)
may be entered in any court having jurisdiction. The Federal Arbitration
Act shall apply to the construction and interpretation of this arbitration
agreement.
(b) A single arbitrator shall have the power to render a maximum award of
one hundred thousand dollars. When any party files a claim in excess of
this amount, the arbitration decision shall be made by the majority vote of
three arbitrators. No arbitrator shall have the power to restrain any act of
any party.
•
Page 9 of 12
• ` GAP End -User Agreement
Big Canyon Country Club
September, 1996
(c) No provision of subparagraph (a) shall limit the right of any parry to •
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including but not limited to injunctive relief) from a court of
competent jurisdiction. The institution and, maintenance of any remedy
permitted above shall not constitute a waiver of the rights to submit any
controversy or claim to arbitration. The statute of limitations, estoppel,
waiver, laches, and similar doctrines which would otherwise be
applicable in an action brought by a parry shall be applicable in any
arbitration proceeding.
19. NOTICES
All notices, payments, transmittafs of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail .
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Public Works Director
USER: Big Canyon Country Club •
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
or such over address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after
depositing in a United States mail depository.
20. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CITY and USER and their respective successors and assigns.
Page 10 of 12
y. -
•
• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
• WITNESS WHEREOF, the parties herein have executed this
Agreement as of the date set forth above,
•
•
APPROVED AS TO FORM
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
CITY OF NEWPORT BEACH,
a municipal corporation
John Hedges
Mayor
BIG CANYON COUNTRY CLUB
a private corporation
General Manager
Page 11 of 12
•
ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
• GAP End -User Agreement
Big Canyon Country Club
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND BIG CANYON
COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN ACRES PROJECT
WATER AT BIG CANYON COUNTRY CLUB" entered into this day of
1996, by and between the CITY of Newport Beach, as the Retailer
of Project Water, and Big Canyon Country Club, as the USER of Project Water, for
delivery and sale of Project Water to Big Canyon Country Club, One Big Canyon Drive,
Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM
General Counsel
F: icatldebbielaglbigcan. doc
09 -16 -96
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of Califomia
President
General Manager
Page 12 of 12
is
•
•
0
0
AGREEMENT
DRAFT
• GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
NEWPORT BEACH COUNTRY CLUB
THIS AGREEMENT is made and entered into this —day of . 1996 by
and between the City of Newport Beach, a Municipal Corporation, hereinafter referred
to as "CITY ", and the Newport Beach Country Club, a private corporation, hereinafter
referred to as "USER ".
RECITALS
1. CITY is the exclusive retail water purveyor, providing water for residential,
industrial, commercial, public agency, agricultural and other uses within CITY's
boundaries. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
from the Orange County groundwater basin, which basin is managed by the
Orange County Water District ( "OCWD ").
• 2. USER is a private corporation within the jurisdictional and service boundaries of
CITY, and currently purchases potable water from CITY for its own use at The
Newport Beach Country Club, 1600 East Coast Highway, Newport Beach,
California, hereinafter, referred to as "SITE ".
3. CITY has agreed to buy reclaimed water from OCWD and resell such reclaimed
water pursuant to the terms and conditions specified in that certain agreement
entitled "Agreement Between Orange County Water District and City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water" dated
January 16, 1991, and as it may be subsequently amended, hereinafter
referred to as "Retailer Agreement." City executed the Retailer Agreement for
the purpose of seeking to provide its present and future residents with a
supplemental source of water to meet their needs and to assist in the statewide
objective of conserving and utilizing to the maximum degree possible the water
of the People of the State of California, which water shall be recovered from the
operation known as the "Green Acres Project" for all possible beneficial uses.
4. The Green Acres Project is being planned for extension into CITY's service area
for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the Irvine Ranch Water District,
( "IRWD "), such wastewater having been treated by OCWD or IRWD to standards
established by the State Health Department and transported and sold by
• OCWD as "Project Water" to CITY to be resold to Project Customers.
ti
i''
• GAP End-User Agreement
Newport Beach Country Cub
September, 1996
5. USER desires to purchase Project Water from CITY for allowable, suitable .
nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities, in lieu of potable water currently purchased from CITY, and
CITY is willing to sell Project Water to USER.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the'Green
Acres Project that will convey Project Water to various locations within CITY
boundaries, including the SITE. All Project Water will originate from either the
OCWD Green Acres Project Water Treatment Facility, or a similar facility
operated by IRWD. OCWD owns the main transmission pipeline facility and
service line which serves USER upstream of CITY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CITY owns, operates and maintains all reclaimed water service
meter vault piping, by -pass line piping, service meter vault, service meter and
control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities." USER owns and maintains the pipelines, pump station,
backflow preventers, warning signs, warning tags and all appurtenances
downstream of CITY's reclaimed water service meter vault, which facilities shall
hereinafter be referred to as "On -Site Facilities" and are more fully set forth on •
the drawings attached hereto as Exhibit A. The point where USER's piping
connects to the downstream end of CITY's reclaimed water service meter vault
shall hereinafter be referred to as the "Point of Connection ". That portion of the
Project Facilities and City Facilities located within CITY's boundaries will be
operated and maintained by CITY as a contractor for OCWD for the purpose of
distributing Project Water to be purchased from CITY by USER. USER shall
also own and maintain all devices on USER's Site potable water system
including, but not limited to, (drinking fountain covers, backflow preventers, air -
gaps and lake fills, identification tags, etc.)
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be
referred to as "Project Rules." In the event that CITY and/or OCWD or any other
governmental agency shall promulgate any rule or regulation that shall
increase above the potable rates, the cost of USER's transportation and /or use
of Project Water as contemplated herein, USER may terminate this Agreement,
upon thirty (30) day notice to CITY and as set forth in Section 14 of this •
Agreement.
Page 2 of 12
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• • GAP End -User Agreement
Newport Beach Gantry Clrb
September, 1996
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
•
INSTANTANEOUS MAXIMUM FLOW
CITY agrees to supply Project Water to USER, and USER agrees to purchase
Project Water. The anticipated average annual Project Water usage at Site is
estimated to be three hundred (300) acre -feet. Project Water flow demands at
the SITE's service shall not exceed an instantaneous maximum flow of two
thousand two hundred (2,200) gallons per minute. By entering into this
Agreement, CITY's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD.
In the event that the current use of the property discontinues or is modified,
USER may modify or terminate this Agreement, as applicable, subject to the
conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, CITY reserves the
right, and has the authority, to take action to insure that the situation be
remedied and to protect the public health, as further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
• CITY agrees that all PROJECT Water delivered to USER from the Project
Facilities pursuant to this Agreement shall conform to (i) the current and future
requirements established by the California Regional Water Quality Control
Board - Santa Ana Region, State and local health departments, and Federal,
State and county agencies having jurisdiction to fix minimum standards for the
quality of water with respect to USER's anticipated use, which Board, health
departments and agencies shall hereinafter be referred to as "Regulatory
Agencies "; and (ii) such minimum standards, set by Regulatory Agencies as
will prevent the Project Water from causing any damage to USER's property
and all plants and vegetation located thereon. If the Project Water fails to
conform to the above requirements, CITY and OCWD covenants that CITY will
terminate the flow of Project Water to the SITE and provide potable water in its
place, and USER may terminate this Agreement if standards are not met within
thirty (30) days.
CITY acknowledges that excess water from USER irrigation operations and
from lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water
will drain into the Upper Newport Bay as well. CITY covenants to indemnify
USER for those costs and expenses arising out of any modification or
termination of USER's right to allow its excess water to drain into the Upper
• Newport Bay when the modification or termination is ordered because of
USER's use of Project Water as contemplated herein.
Page 3 of 12
• • GAP End-User Agreement
Newport Beach Country CYib
September, 1996
Project Water shall be delivered on a continuous basis at a pressure of not less
than fifty pounds per square inch (50 psi) for demands up to fifteen hundred •
gallons per minute (1,500 gpm) at the Point of Connection between the hours of
9:00 p.m. to 6:00 a.m. USER shall not exert a demand for Project Water
between the hours of 6:00 a.m. and 9 :00 p.m. unless USER's staff is present to
ensure that the public does not come in contact with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by USER for Project Water
delivered by CITY shall not exceed the lower of (a) eighty percent (80 %) of the
CITY's retail rate for potable water, as established by resolution of the City
Council and enforced on the date of delivery of the Project Water, or (b) the
lowest rate then offered by CITY to any purchaser of reclaimed water, whether
such rate is determined as a percentage of CITY's retail rate for potable water or
otherwise. The retail rate for potable water shall be subject to modification as
determined by and within the discretion of the City Council. At least ten (10)
days prior to the adoption of a resolution establishing the water rate of CITY
and/or modifying the purchase price of Project Water, CITY shall provide notice
as prescribed in the City Municipal Code of a public hearing on the resolution
and price which shall apply following adoption of said resolution. Failure to
give notice shall not invalidate the action of the City Council.
6. METERING AND MEASUREMENT OF FLOWS •
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER, CITY shall periodically read the service meter
and record usage of Project Water onto a schedule.
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CITY's regular billing cycle. Said invoices shall be paid within
nineteen (19) days of the billing date, CITY retains the right to change billing
cycles and due dates as necessary, upon sixty (60) days prior notice to USER,
so long as such change is consistent with formally adopted City wide practice
and procedures and State law.
•
Page 4 of 12
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. GAP End -User Agreement
Newport Beach Country Club
September, 1996
• 8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for those uses and
purposes provided for herein which are legally permissible under the laws of
the State, the Project Rules and rules adopted by CITY, by OCWD, and by
Regulatory Agencies.
9. COVENANTS
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's irrigation
needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project Facilities
and City Facilities have complied and will comply with all regulations
promulgated by all Regulatory Agencies and all other applicable laws.
(c) The water quality parameter limits of the Project Water during the term(s)
40 Exhibit this Agreement will be as shown on the chart attached hereto as
Exhibit B.
(d) CITY will provide USER with all engineering support requested by
USER, including the assistance of CITY engineers, and other staff, to
assist in the review of USER's irrigation system redesign for the purposes
contemplated herein.
(e) At CITY's cost, CITY will make presentations to USER, USER's club
members and related homeowners' associations with respect to the
Green Acres Project and Project Water.
(f) CITY acknowledges and agrees that USER may use potable water to
irrigate putting greens, the perimeter of selected fairways located
adjacent to residences, and elsewhere on the SITE as agreed to by
USER and CITY and within acceptable State Health Department
standards.
•
Page 5 of 12
i[Q
GAP End -User Agreement
.
Newport Beach Co ntry Cob
September, 1996
INDEMNIFICATION •
CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or
demands, including (i) all consequential damages; (ii) all damages to any
natural resources, and the costs of any required or necessary repair, clean up,
response cost, or detoxification of the SITE or any portion thereof, and the
preparation and implementation of any closure, remedial or other required
plans; and (iii) all costs and expenses incurred in connection with clauses (i)
and (ii), including all attorneys' fees and expenses, whether in suit or not, which
arise directly or indirectly out of (x) the use by USER of the Project Water as
contemplated herein, (y) the existence or alleged existence of any Hazardous
Substances (as defined below) in the Project Water or (z) the removal of or
failure to remove any Hazardous Substances from the Project Water unless.
such suit, claim or demand is caused by the negligence or willful misconduct of
USER, its directors, agents and employees, the negligent operation,
maintenance or repair by USER of Project Water distribution and on site
facilities; or USER's misuse or misapplication of Project Water on the Site. The
foregoing indemnity shall apply to any residual contamination on, under or
about the SITE and to any contamination of any property or natural resources
arising from the Project Water.
Upon receiving knowledge of any suit, claim or demand asserted by a third •
parry that USER believes is covered by this indemnity, USER shall give CITY
notice of the matter and an opportunity to defend it, at CITY's cost and expense,
with legal counsel satisfactory to USER. USER may also require CITY to so
defend the matter. CITY will pay all fees or penalties imposed by any
Regulatory Agency or any other governmental authority for any violation of any
code, regulation or law with respect to the transportation, use or chemical
composition of the Project Water. The obligations of CITY under this
Section 10 shall survive the term(s) of this Agreement.
As used herein, "Hazardous Substances" shall mean (i) any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Law (as defined
below) as a 'hazardous substance ", "hazardous material", "hazardous waste ",
"contaminant" or any other formulation not mentioned herein intended to define,
list, or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity,
"EP toxicity" or "TCLP toxicity "; and (ii) any other chemical, material, or
substance that, because of its quantity, concentration, or physical or chemical
characteristics, exposure to which is limited or regulated for health and safety
reasons by any governmental authority, or which poses a significant present or
potential hazard to human health and safety or to the environment if released
into the workplace or the environment. "Environmental Law" shall mean shall
mean any and all present and future Federal, state and local laws (whether
Page 6 of 12
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GAP End -User Agreement
Newport Beach Country Club
September, 1996
under common law, statute or otherwise), ordinances, regulations, permits,
guidance documents, policies, and any other requirements of governmental au-
thorities relating to health, safety, the environment or to any Hazardous
Substances.
11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's cooperation, any and all applications and undertake such
proceedings as may be necessary to enable OCWD, CITY and USER to carry
out the undertaking described herein, and to pursue such application and
proceedings in good faith and with due diligence, including any application
required to be issued to OCWD by Regulatory Agencies. USER understands
and agrees that USER must comply with the regulations set forth in permits if
such permits apply to USER, provided that such compliance by USER shall not
materially increase the cost of Project Water or unreasonably interfere with
USER's golf course and related operations.
12. CONDITIONS PRECEDENT
• This Agreement is conditioned upon OCWD's completing and making
operational the Green Acres Project by July 1, 1998, including the following:
(1) the transmission pipeline is extended to the Site; (2) OCWD makes Project
Water available for sale; and (3) all necessary permits, certificates and
approvals are issued by all Regulatory Agencies having jurisdiction over the
construction and operation of water reclamation facilities and over the
production, distribution, sale and use of Project Water. This Agreement is
further conditioned upon (i) OCWD's acquiring by July 1, 1998, acceptable
right -of -way access from the Project Facilities to the SITE for transportation
pipeline purposes, and (ii) OCWD and CITY gaining by July 1, 1998, the
approval by all federal, state and local agencies having regulatory jurisdiction
or grant funding responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 12 are not met within the given time limits,
USER may cancel this Agreement. .
13. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy -
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty -four (24) hours advance notice when resumption of the delivery of
. Project Water to USER's SITE is expected. In the event CITY is unable to
deliver Project Water to USER or defaults under this Agreement, CITY must
provide USER with water at the full potable water rate if source is subject to the
Page 7 of 12
iGAP End -User Agreement
Newport Beach CoLn" Club
September, 1996
right of CITY to determine allocation of all water, both Project Water and .
potable, in the event of emergencies. If USER terminates this Agreement as
authorized under the terms of this Agreement, CITY must provide USER with
potable water in the place of Project Water. Furthermore, in the event that
OCWD ceases producing and distributing Project Water or in the event that the
treatment criteria imposed by any Regulatory Agencies exceeds those existing
as of the date of this Agreement, either CITY or USER shall have the option to
cancel this Agreement. CITY shall convert service on the SITE back to a
potable water system(s) at no expense to USER if this Agreement is canceled
by CITY during the initial term of this Agreement or USER pursuant to Sections
2 and 4 above. The cost of conversion back to a potable water system shall be
bome by USER if said conversion occurs after the initial term of this Agreement.
14. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
15. TERM
The term of this Agreement shall be ten (10) years from the day and year first •
above written. USER shall have the option to extend said term for two (2)
additional ten (10) year terms, provided that USER gives CITY written notice of
such election at least six (6) months prior to the expiration of the previous term.
The parties do hereby agree that any portion of this Agreement may be revised
by written amendment at any time by mutual agreement of the parties hereto.
16. ASSIGNMENT
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without written consent from CITY and OCWD, which consent shall not
be unreasonably withheld.
Page 8 of 12
ii
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GAPEnd -User Agreement
Newport Beach Country CYib
September, 1996
17. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims arising
directly or indirectly out of this Agreement shall at the written request of
any party be arbitrated pursuant to the applicable rules of the American
Arbitration Association. The arbitration shall occur in the State of
California. Judgment upon any award rendered by the arbitrator(s) may
be entered in any court having jurisdiction. The Federal Arbitration Act
shall apply to the construction and interpretation of this arbitration
agreement.
(b) A single arbitrator shall have the power to render a maximum award of
one hundred thousand dollars. When any party files a claim in excess of
this amount, the arbitration decision shall be made by the majority vote of
three arbitrators. No arbitrator shall have the power to restrain any act of.
any party.
(c) No provision of subparagraph (a) shall limit the right of any parry to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including but not limited to injunctive relief) from a court of
competent jurisdiction. The institution and maintenance of any remedy
permitted above shall not constitute a waiver of the rights to submit any
controversy or claim to arbitration. The statute of limitations, estoppel,
waiver, laches, and similar doctrines which would otherwise be
applicable in an action brought by a parry shall be applicable in any
arbitration proceeding.
18. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Public Works Director
USER: Newport Beach Country Club
1600 East Coast Highway
Newport Beach, CA 92660
Attention: Jerry L. Anderson
Director of Golf
Page 9 of 12
• GAP End -User Agreement
Newport Beach Country Club
September, 1996
or such over address as CITY or USER shall direct in writing. Service of any •
instrument or writing by mail shall be deemed complete 48 hours after
depositing in a United States mail depository.
19. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CITY and USER and their respective successors and assigns.
Page 10 of 12
is
GAP End -User Agreement
Newport Beach Cointry CVb
September, 1996
• WITNESS WHEREOF, the parties herein have executed this Agreement as of
the date set forth above.
•
•
:/Tt
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
a municipal corporation
Robin Clauson John Hedges
Assistant City Attorney Mayor
ATTEST: THE NEWPORT BEACH COUNTRY CLUB
a private corporation
LaVonne Harkless Jerry L. Anderson
City Clerk Director of Golf
Page 11 of 12
ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
GAP End -User Agreement
Newport Beach Country Club
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT BEACH
COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN ACRES PROJECT
WATER AT NEWPORT BEACH COUNTRY CLUB" entered into this day
Of , 1996, by and between the CITY of Newport Beach, as the
Retailer of Project Water, and The Newport Beach Country Club, as the USER of
Project Water, for delivery and sale of Project Water to Newport Beach Country Club,
1600 East Coast Highway, Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM: ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel President
f:\cat\debbie\ag\cfean\nbcc.doc
09 -16 -96
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General Manager •
Page 12 of 12
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•
TO: Mayor & Members of the City Council
FROM: Public Works Department
August 14, 1995
CITY COUNCIL AGENDA
ITEM NO._ /
SUBJECT: GREEN ACRES RECLAIMED WATER PROJECT,
APPROVAL OF DRAFT "END- USER" AGREEMENT
RECOMMENDATIONS:
1. Approve the draft "End- User" Agreement.
2. Authorize the Mayor and the City Clerk to execute "End -
User" Agreements on behalf of the City.
GREEN ACRES RECLAIMED WATER PROJECT OVERVIEW:
• The Orange County Water District (OCWD) is the groundwater
basin manager for most of northern Orange County. Approximately 70 percent
of the northern and central Orange County Cities and Water Districts pump
water from wells in this basin. In an effort to conserve the water supply and
protect the groundwater basin, OCWD initiated the Green Acres Reclaimed
Water Project (refer to Exhibit "A" attached). OCWD is a national leader in
reclamation and serves as a model agency for other drought- stricken
communities.
In 1985, OCWD requested the City of Newport Beach to consider
potential expansion of the Green Acres Project. After almost ten years of study
and design, the expansion into Newport Beach now appears imminent. It is
estimated that by Summer 1998, Newport Beach could have a fully operational
reclaimed water system.
The total OCWD Green Acres Project costs are approximately 50
million dollars. Most of the costs are being funded by OCWD and a low -
interest loan from the State of California, authorized by the State Water
Resource Control Board. On -site retrofitting for each of the potential reclaimed
• water users, (see attached Exhibit "B" and "C "), will be jointly funded by OCWD
and the reclaimed water users. The cost of the reclaimed water for each user
will be set by agreement at 80 percent of current potable water cost.
DRAFT "END- USER" AGREEMENT:
Attached for your review in Exhibit "D" is a draft "End- User" Agreement for the
Big Canyon Country Club (BCCC). Each of the planned reclaimed water users
throughout the City will be required to execute an "End- User" Agreement. The
current planned list of users are BCCC, Newport Beach Country Club,
Eastbluff Homeowners Association, Newport/Mesa Unified School District
0 0
Page 2
Green Acres Reclaimed Water Project
Approval of Draft "End -User' Agreement
August le, 1995
(CDM High School), County of Orange (Bayview Park) and the City of Newport •
Beach (Bonita Creek Park, Medians, and East Bluff Park). These agreements
are required by the otiginal Agreement between OCWD and the City regarding
the Green Acres Reclaimed Water Project, dated January 16, 1991. OCWD
wants to ensure appropriate and safe use of the reclaimed water.
Key aspects of the "End- User' Agreements are ownership of
facilities, delivery of the reclaimed water, reclaimed water quality and quantity,
maximum allowable flow to user, payment, metering of flow, system retrofitting
and legal bindings. No commitment of City funds is included in the Agreement.
The City Attorney has approved the form of the draft "End -User' Agreement
At the August 1s`, 1995 meeting of the Utilities /Public Works
Committee, the Chairman requested staff to combine all "End- User'
Agreements into one Council consideration which would authorize the Mayor
and City Clerk to execute "End- User" Agreements on behalf of the City.
STAFF RECOMMENDATION:
Staff recommends approval of the draft "End- User' agreement and
requests approval for the Mayor and City Clerk to execute "End- User'
Agreements on behalf of the City.
Respectfully submitted,
PUBLIC WORKS DIRECTOR
Don Webb, Director
By:
Mic ael J. Sinacori, P.E.
(Acting) Utilities Manager
NUS:sdi
Attachments: Exhibit "A ", Green Acres Project Service Area. •
Exhibit "B ", Potential Users in Newport Beach.
Exhibit "C ", Summary of Probable Potential User Demands
.Exhibit "D ", Draft "End- User" Agreement for Big Canyon Country Club
•
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RGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT •
END -USER AGREEMENT FOR DELIVERY AND SALE
OF RECLAIMED WATER TO BIG CANYON COUNTRY CLUB
THIS AGREEMENT is made and entered into this __ day of _____, 1995
by and between the City of Newport Beach, a Municipal Corporation, hereinafter
referred to as "CITY ", and the Big Canyon Country Club, a Private Corporation,
hereinafter referred to as "USER ".
RECITALS
A. CITY is the exclusive retail water purveyor, including water for
residential, industrial, commercial, public agency, agricultural and other uses within
CITY's boundaries, and produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
from the Orange County groundwater basin; basin is managed by the Orange County •
Water District ( "OCWD "), and;
B. USER is a private corporation within the jurisdictional and service
boundaries of CITY, and currently purchases potable water from CITY for its own use
at Big Canyon Country Club, #1 Big Canyon Drive, Newport Beach, California,
hereinafter, referred to as "SITE ", and;
C. CITY has agreed to buy reclaimed water from OCWD and resell such
reclaimed water to pursuant to the terms and conditions specified in that certain
agreement entitled, "Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water," dated
January 16, 1991, and as may be subsequently amended, hereinafter refered to as
"Retailer Agreement." City executed the Retailer Agreement for the purpose of
seeking to provide its present and future residents with a supplemental source of •
water to meet their needs and to assist in the statewide objective of conserving and
utilizing to the maximum degree possible the water of the People of the State of
California, which water shall be recovered from the operation known as the "Green
Acres Project" for all possible beneficial uses.
EXH'&A T "D"
• G*Acres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
D. The Green Acres Project is being planned for extension into the CITY's
• service area for the purpose of conserving and beneficially reusing Wastewater
received by OCWD from the County Sanitation Districts of Orange County, such
wastewater having been treated, transported and sold by OCWD as "Project Water" to
CITY to be resold to Project Customers. Such Project Water is suitable for use in
landscape and agricultural irrigation, and for industrial and construction purposes in
lieu of potable water, and;
•
is
D. USER desires to purchase Project Water from CITY for allowable,
suitable nonpotable uses, specifically, for landscape irrigation, in lieu of potable
water currently purchased from CITY, and;
E. CITY is willing to sell Project Water to USER, and;
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission as part of the Green
Acres Project, that will convey Project Water to various locations within CITY
boundaries, including the SITE. All Project Water will originate from the
Green Acres Project Water Treatment Facility, located at the offices of OCWD
at 10500 Ellis Avenue, Fountain Valley, California. OCWD owns the main
transmission pipeline facility and service line which serves USER upstream
of the CITY's reclaimed water service meter vault, said lines hereinafter shall
be referred to as "Project Facilities." CITY owns, operates and maintains all
reclaimed water service meter vault piping, by -pass line piping, service meter
vault, service meter and control valves, collectively hereinafter such facilities
shall be referred to as "City Facilities." USER owns and maintains the
pipelines, pump station, backflow preventers, warning signs, and warning
tags and all appurtenances downstream of the CITY's reclaimed water service
meter vault, hereinafter such facilities shall be referred to as "On -Site
Facilities." The point where "USER's piping connects to downstream end of
CITY's reclaimed water service meter vault shall hereinafter be referred to as
the "Point of Connection ". That portion of the Project transmission pipeline
system located within the CITY's boundaries will be operated and maintained
by CITY as a contractor for OCWD for the purpose of distributing Project
Page 2 of 10
• GleAcres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
Water to be purchased from CITY by USER. USER shall also own and
maintain all devices on USER's On -Site potable water system including, but
not limited to drinking fountain covers, backflow preventers and •
identification tags
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension
thereof, USER shall comply with all rules and regulations promulgated now
and in the future by the CITY relative to the sale and use of Project Water and
those rules and regulations promulgated now and in the future by OCWD
relative to the transportation and use of Project Water, hereinafter referred to
as "Project Rules ".
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
CITY agrees to supply Project Water to USER, and USER agrees to purchase •
on an annual basis, as a minimum, three hundred and sixty (360) acre -feet.
Project Water flow demands at the SITE's service shall not exceed an
instantaneous maximum flow of two thousand and two hundered (2,200)
gallons per minute. By entering into this Agreement, CITY's performance of
this Agreement shall at all times be conditioned upon the continuous
operation of the Project Facilities by OCWD. To the extent that USER's
current use of its property necessitates the use of Project Water, USER will
continue to purchase Project Water. In the event that the current use of the
property discontinues or is modified, USER may modify or terminate this
Agreement as applicable, subject to the conditions set forth in Section 13 of
this Agreement.
If at any time during construction or operation of the On -Site Facilities, real
or potential hazards, or evidence of a hazard, are found to exist, the CITY •
reserves the right, and has the authority, to take action to insure that the
situation shall be remedied, and to protect the public health, as further set
forth in the Project Rules. Such remedies may include, but shall not be
limited to, the right of the CITY to terminate Project Water service to SITE.
Page 3 of 10
• GMAcres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
• CITY agrees, subject to compliance by OCWD, that all PROJECT Water
delivered to USER from the Project Facilities pursuant to this Agreement
shall conform to the current and future requirements established by the
California Regional Water Quality Control Board - Santa Ana Region, State
and local health departments, and Federal, State and County agencies,
hereinafter referred to as "Regulatory Agencies," having jurisdiction to fix
minimum standards for the quality of water, with respect to USER's
anticipated use.
Project Water shall be delivered on a continuous basis at a pressure of not less
than fifty pounds per square inch (50 psi) for demands under thirteen
hundered gallons per minute (1,300 gpm), and not less than forty pounds per
square inch (40 psi) for flows from thirteen hundered and one gallons per
minute (1,301 gpm) to two thousand and two hundred gallons per minute
• (2,200 gpm) at the Point of Connection between the hours of 9:00 p.m. to 6:00
a.m. USER shall not exert a demand for Project Water between the hours of
6:00 a.m. and 9:00 p.m. unless USER's staff is present to ensure that the public
does not come in contact with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by USER for Project
Water delivered by CITY shall not exceed eighty percent (80 %) of the CITY's
retail rate for potable water, as established by resolution of the City Council
and enforced on the date of delivery of the Project Water. The retail rate for
potable water shall be subject to modification as determined by and within the
discretion of the City Council. At least 10 days prior to the adoption of a
resolution establishing the water rate of CITY and /or modifying the purchase
• price of Project Water, CITY shall give written notice to USER of a hearing on
the resolution and price which shall apply following adoption of said
resolution. Failure to give notice shall not invalidate the action of the City
Council.
Page 4 of 10
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91
a
• G*Acres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for
the purpose of measuring the quantity of Project Water delivered pursuant to
the terms of this Agreement from CITY to USER at the Point of Connection
where such water is delivered to USER. CITY shall read the service meter
and record Project Water usage for USER on an every other month basis.
OCWD shall be given access to said service meter to take readings.
PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by
USER every other month, as part of CITY's regular billing cycle. Said invoices
shall be paid within thirty (30) days of the billing date.
LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use such only upon the property of USER and only for those uses
and purposes provided for herein which are legally permissible under the
laws of the state, the Project Rules and rules adopted by CITY, by OCWD, and
by Regulatory Agencies.
PERMITS
This Agreement is conditioned on OCWD and USER obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. USER
agrees to file any and all applications and undertake such proceedings as may
be necessary to enable OCWD, CITY and USER to carry out the undertaking
described herein, and to pursue such application and proceedings in good
faith and with due diligence, including any application required to be issued
to OCWD by Regulatory Agencies. USER understands and agrees that USER,
where applicable, will comply with the regulations set forth in permits.
Page 5 of 10
•
•
• Gr*Cres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
10. MONITORING
• CITY's responsibility for managing and monitoring the Project Water
produced and delivered hereunder shall cease upon delivery to USER at the
Point of Connection. Managing and monitoring with respect to the storage
and distribution of Project water under the control of USER shall be the
responsibility of USER. USER further agrees to allow CITY, Regulatory
Agencies and /or OCWD's representatives to enter USER's SITE for
monitoring, sampling, analysis and observation of USER's On -Site Facilities.
11. CONDITIONS PRECEDENT
This Agreement is conditioned upon OCWD's completing and making
operational the Green Acres Project, including: (1) transmission pipeline
extension to USER; (2) OCWD making Project Water available for sale; and (3)
issuance of all necessary permits, certificates and approvals by all Regulatory
Agencies having jurisdiction over the construction and operation of water
• reclamation facilities and over the production, distribution, sale and use of
Project Water. This Agreement is conditioned further upon OCWD's being
able to acquire acceptable right -of -way access from the Project Facilities to the
SITE for transportation pipeline purposes, and is further conditioned upon
approval by all federal, state and local agencies having regulatory jurisdiction
or grant funding responsibilities with regard to the Project Facilities.
12. CONDITIONS SUBSEQUENT
In the event that the CITY is unable to deliver Project Water through Project
Facilities, the CITY reserves the right to notify USER a minimum of 24 hours
advance notice, except in the event of emergencies, that said deliveries shall
temporarily cease. CITY shall provide USER with a minimum of 24 hours
advance notice when resumption of Project Water delivery is expected at
USER's SITE. h1 the event CITY is unable to provide delivery of Project
•
Water, CITY may provide water to USER from alternative sources at the full
potable water rate, subject to the right of CITY to determine allocation of all
water, both Project Water and potable, in the event of emergencies.
Furthermore, in the event that OCWD ceases producing and distributing
Project Water or in the event that the treatment criteria imposed by any
Regulatory Agencies exceeds those existing as of the date of this Agreement,
CITY shall have the option of canceling this Agreement. CITY shall convert
Page 6 of 10
• d*Acres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
service on the SITE back to a potable water system(s) at no expense to USER if
this Agreement is canceled by CITY within ten (10) years immediately
following the date of this Agreement. The cost of conversion back to a
potable water system shall be borne by USER if said conversion occurs after
ten (10) years from the date of this Agreement.
13. RETROFITTED ON SITE FACILITIES
USER acknowledges that OCWD has contributed significantly to retrofitting
USER's irrigation water service facilities and in furnishing safeguards for
USER's potable water system to accommodate the use of Project Water at said
SITE. Said retrofitted facilities and safeguards represent a significant
expenditure of public funds by OCWD. Therefore, in the event USER
abandons On -Site and City Facilities within ten (10) years from the day and
year first above written, then USER shall reimburse OCWD on a uniform
distribution of said total costs and fees over the term of this Agreement,
including eight percent (8 %) interest on said residual costs and fees
compounded annually and calculated from the day and year first written
above until abandonment per attached Exhibit "A" which is incorporated
herein. Abandonment of On -Site and City Facilities shall be understood to
mean an annual usage in any given year which is less than two hundred acre -
feet (200 af).
14. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water
from the Green Acres Project beyond that usable by USER. CITY reserves the
right to enter into contracts with others for the sale of any Project Water.
15. TERM
The term of this Agreement shall be ten (10) years from the day and year first
above written. The parties do hereby agree that any portion of this
Agreement may be revised by written amendment at any time by mutual
agreement of the parties hereto. The parties do hereby also agree that one (1)
year prior to the end of the term of this Agreement, all of the terms herein
shall be reviewed, and if all of the terms are mutually agreed upon following
such review, this Agreement shall be renewed.
Page 7 of 10
is
•
•
Gracres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
16. ASSIGNMENT
• This Agreement and the rights and benefits of the CITY hereunder may be
assigned and transferred by the CITY to any entity which assumes the
responsibilities and obligations of CITY for the sale and distribution of Project
Water to the USER. This Agreement and the rights and benefits of USER
hereunder shall not be assigned or transferred by USER without written
consent from CITY and OCWD.
17. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or
other proceeding against the other party arising out of or relating to the
subject matter of this Agreement, its validity or any of the terms or
provisions thereof, then the prevailing party in such action, suit, arbitration
or other proceeding shall recover from the other party its reasonable
• attorneys' fee costs incurred in connection therewith, in addition to any other
relief to which it may be entitled. Said attorneys' fees shall include such fees
for prosecuting or defending any appeal and shall be recoverable, and
awarded for any supplemental proceedings until the final judgment is
satisfied in full.
18. NOTICES
All notices, payments, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties
hereto under this Agreement shall be personally served or deposited in the
United States mail depository first class postage prepaid, and addressed as
follows:
CITY: City of Newport Beach
• 3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Utilities Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
Page 8 of 10
• A Acres Reclaimed Water Project End -UBement for Delivery and Sale of Reclaimer to Big Canyon Country Club
or such other address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after
depositing in United States mail depository. •
19. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon and
inure to the benefit of CITY and USER, and their respective successors and
assigns.
Page 9 of 10
•
I
•
•
•
Gr(Acres Reclaimed Water Project
End -User Agreement for Delivery and Sale of
Reclaimed Water to Big Canyon Country Club
IN WITNESS WHEREOF, the parties herein have executed this Agreement
as of the date set forth above.
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
ATTEST:
Wanda Raggio
City Clerk
City of Newport Beach,
a municipal corporation
John Hedges
Mayor
Big Canyon Country Club
a private corporation
Dennis Harwood
President
ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing "AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND BIG CANYON COUNTRY CLUB
REGARDING DELIVERY AND SALE OF GREEN ACRES PROJECT WATER AT BIG
CANYON COUNTRY CLUB" entered into this day of 1995 by
and between the CITY of Newport Beach, as the Retailer of Project Water, and Big Canyon
Country Club, as the USER of Project Water, for delivery and sale of Project Water to Big
Canyon Country Club, One Big Canyon Drive, Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel
President
General Manager
Page 10 of 10
AGREEMENT
BETWEEN ORANGE COUNTY WATER DISTRICT AND CITY OF
NEWPORT BEACH REGARDING DELIVERY AND SALE OF
GREEN ACRES PROJECT WATER TO EASTBLUFF PARK
THIS AGREEMENT, made and entered into as of September 30, 1996,
by and between the Orange County Water District, a political subdivision of the State
of California, hereinafter referred to as "OCWD," and the City of Newport Beach, a
Municipal Corporation, hereinafter referred to as "City," for the use of Green Acres
Project water, hereinafter referred to as "Project Water," at Eastbluff Park, hereinafter
referred to as "Site."
RECITALS
A. City is the exclusive retail water purveyor including water for residential,
industrial, commercial, public agency, agricultural and other uses within
City's boundaries, and produces and distributes water in part purchased
from the Metropolitan Water District ( "MWD ") of Southern California and
in part produced from the Orange County ground water basin, which
basin is managed by OCWD."
B. Site has the street address of 2401 Vista del Oro, Newport Beach,
California. Site is part of the City's public park system and such Site is
owned, operated and maintained by the City. Site currently receives
water from City's potable water system for its own use.
C. City has agreed to buy reclaimed water from OCWD pursuant to the
terms and conditions specified in that certain agreement, entitled,
"Agreement Between Orange County Water District & City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water,"
dated, January 16, 1991, and as may be subsequently amended,
hereinafter referred to as "Retailer Agreement." City executed said
Page 1 of 10
/6 s
orwn noc. " % 6 / D STAB NO. 3 i
0 0
Retailer Agreement for the purpose of seeking to provide various City
sites and its present and future residents with a supplemental source of
water to meet their needs and to assist in the statewide objective of
conserving and utilizing to the maximum degree possible the water of the
People of the State of California, which water shall be recovered from the
operation of OCWD's Green Acres Project water reclamation operation
for all possible beneficial uses.
D. The Green Acres Project extension into Newport Beach is being
constructed for the purpose of conserving and beneficially reusing
wastewater received by OCWD from the County Sanitation Districts of
Orange County or the Irvine Ranch Water District, hereinafter referred to
as "IRWD;" such wastewater having been treated by OCWD or IRWD to
standards established by the State Health Department and transported
and sold by OCWD as Project Water to City. Such Project Water is
suitable for use in landscape and agricultural irrigation, and for industrial
and construction purposes in lieu of potable water.
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions herein contained, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline, service
laterals and metering facilities as part of the Green Acres Project to
convey Project Water to various user sites within City boundaries,
including said Site. All Project Water will originate from either the OCWD
Green Acres Project Treatment Facility, or a similar facility operated by
IRWD. The existing Green Acres facilities include a water treatment
facility, located at the offices of OCWD at 10500 Ellis Avenue, Fountain
Valley, California, and a transmission pipeline system. All pipelines,
pipeline appurtenances and service lines within the City's incorporated
boundary's that lie upstream of the reclaimed water service meter vaults,
hereinafter the totality of such facilities shall be referred to as "OCWD
Facilities," shall be owned by OCWD. City owns, operates and maintains
the Project water service meter vault; meter, piping and appurtenances
Page 2 of 10
within meter vault; and onsite piping facilities downstream of meter vault
on said Site; hereinafter the totality of such facilities shall be referred to
as "City Facilities." The point where OCWD's service line connects to
upstream end of reclaimed water meter vault shall hereinafter be referred
to as the "Point of Connection." The portion of OCWD Facilities which are
located within City's incorporated boundaries will be operated and
maintained by City as a contractor for OCWD pursuant to the terms and
conditions set forth in the Retailer Agreement. City shall also own and
maintain all devices of said Site's onsite potable water system including,
but not limited to, drinking fountain covers, backflow preventers, and
identification tags.
2. RULES AND REGULATIONS
City agrees that during the term of this Agreement and any extension
thereof, City shall comply with all rules and regulations promulgated now
and in the future by OCWD and subsequently by City relative to the sale
and use of Project Water and those rules and regulations promulgated
now and in the future by OCWD and subsequently by City relative to the
transportation and use of Project Water, hereinafter referred to as "Project
Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY CITY;
INSTANTANEOUS MAXIMUM FLOW
OCWD agrees to supply Project Water to City, and City agrees to
purchase Project Water from OCWD. The estimated annual demand for
the Site is projected to be twenty (20) acre -feet per year. Project Water
flow demands at the Site's service shall not exceed an instantaneous
maximum flow of one hundred and forty (140) gallons per minute. By
entering into this Agreement, City's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project
Facilities by OCWD. To the extent that City's current use of Site property
necessitates the use of Project Water, City will continue to purchase
Project Water. In the event that the current use of the property
Page 3 of 10
discontinues or is modified, City may modify or terminate this Agreement
as applicable.
If at any time during construction or operation of the Onsite Facilities, real
or potential hazards, or evidence of a hazard, are found to exist, the City
shall take the necessary steps within its authority to insure that the
situation is remedied, and to protect the public health, as further set forth
in the Project Rules. Such remedies may include, but shall not be limited
to the City terminating Project Water service to the Site. In the event that
said hazards are not remedied by City to the satisfaction of a "Regulatory
Agency," defined herein as the California Regional Water Quality Control
Board - Santa Ana Region, state and local health departments, and
federal, state and county agencies, OCWD may terminate Project Water
service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY CITY; PRESSURE
OCWD agrees that all Project Water delivered to City from the Project
Facilities pursuant to this Agreement shall conform to the current and
future requirements established said Regulatory Agencies, having
jurisdiction to fix minimum standards for the quality of water, with respect
to City's anticipated use at Site.
OCWD shall deliver Project Water on a continuous basis at a pressure of
not less than sixty -five pounds per square inch (65 psi) at the Point of
Connection between the hours of 9 p.m. and 6 a.m. City shall not exert
demand for Project Water between the hours of 6 a.m. and 9 p.m. unless
City's staff is present to ensure that the public does not come in contact
with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by City to OCWD for
Green Acres Project Water shall be the price then in effect under
Sections 2.4 and 2.5 of the Retailer Agreement.
Page 4 of 10
6. METERING AND MEASUREMENT OF FLOWS
City agrees that at locations on Site where irrigation water is used
exclusively, City shall maintain, at its own expense, a control valve or
valves and a meter at the Point of Connection for the purpose of
measuring the quantity of Project Water delivered to Site pursuant to the
terms of this Agreement. City shall read the service meter and record
Project Water usage for Site per the terms and conditions set forth in the
Retailer Agreement. OCWD shall be given access to said service meter
by City to take readings.
7. PAYMENT FOR PROJECT WATER
City shall issue pay warrant(s) to OCWD for the price of Project Water
delivered to the Site in accord with Section 2.7 of the Retailer Agreement.
8. LIMITATION OF USE
City understands and agrees that Project Water delivered from OCWD's
Green Acres Project Facilities pursuant to the terms hereof has restricted
uses, and City agrees to use such only upon the property of Site and only
for those uses and purposes provided for herein which are legally
permissible under the laws of the state, the Project Rules and rules
adopted by City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD's and City's obtaining the
necessary permits relating to the use of Project Water for landscape
irrigation. Both parties agree to file any and all applications and
undertake such proceedings as may be necessary to enable one or both
parties to carry out the undertaking described herein, and to pursue such
application and proceedings in good faith and with due diligence,
including any application required to be issued to one or both parties by
Regulatory Agencies. OCWD and City understand and agree that, where
Page 5 of 10
• •
applicable, the parties will comply with the regulations set forth in
permits.
10. MONITORING.
OCWD's responsibility for management and monitoring the Project Water
produced and delivered hereunder shall cease upon delivery to Site at
the Point of Connection. Operation, management, maintenance and
monitoring with respect to the storage, distribution and other facilities on
the Site shall be the responsibility of City. City further agrees to allow
Regulatory Agencies and /or OCWD's representatives to enter Site's
premises for monitoring, sampling, analysis and observation of Site's
Project Water facilities.
City understands and agrees that groundwater underlying property of
Site may also need to be monitored for quality. OCWD shall file for and
obtain a permit with all applicable fees waived by City to construct
groundwater monitoring well(s) as required by Regulatory Agencies. At
no expense to OCWD, City shall provide easement(s) to OCWD to
construct, at no expense to City, groundwater monitoring well(s) on Site.
City shall provide OCWD with access to such monitoring well(s) for the
purpose of carrying out all groundwater monitoring activities.
11. CONDITIONS PRECEDENT
This Agreement is conditioned upon: (1) OCWD making Project Water
available for sale; and (2) issuance of all necessary permits, certificates
and approvals by all Regulatory Agencies having jurisdiction over the
continued operation of water reclamation facilities and over the
production, distribution, sale and use of Project Water. This Agreement is
further conditioned upon approval by all federal, state and local agencies
having regulatory jurisdiction or grant funding responsibilities with regard
to the Project Facilities.
Page 6 of 10
12. CONDITIONS SUBSEQUENT
In the event that OCWD is unable to deliver Project Water through Project
facilities, OCWD reserves the right to notify City with a minimum of 24
hours advance notice, except in event of emergencies, that said
deliveries shall temporarily cease. OCWD shall provide City with a
minimum of 24 hours advance notice when resumption of Project Water
deliveries is expected at City's Site. In the event OCWD is unable to
provide delivery of Project Water, City may temporarily provide water to
Site from alternative sources in accordance with Project Rules and
requirements of any Regulatory Agency having jurisdiction over Site.
Furthermore, in the event that OCWD ceases producing and distributing
Project Water or in the event that the treatment criteria imposed by any
Regulatory Agency exceeds those existing as of the date of this
Agreement, either Party shall have the option of canceling this
Agreement. OCWD shall convert service on the Site back to a potable
water system at no expense to City if this Agreement is canceled within
ten (10) years immediately following the date hereof. The cost of
conversion back to a potable system shall be borne by City if said
conversion occurs after ten (10) years from the date of this Agreement.
13. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of the Project
Water from the Green Acres Project beyond that usable by City. City
reserves the right to enter into contracts with others for the sale of any
Project Water.
14. TERM
The term of this Agreement shall be ten (10) years from the day and year
first above written. The parties do hereby agree that any portion of this
Agreement may be revised by written amendment at any time by mutual
agreement of the parties hereto. The parties do hereby also agree that
one (1) year prior to the end of the term of this Agreement, all of the terms
Page 7 of 10
0 0
herein shall be reviewed, and if all of the terms are mutually agreed upon
following such review, this Agreement shall be renewed.
15. ASSIGNMENT
This Agreement and the rights and benefits of City hereunder may be
assigned and transferred by City to any entity which assumes the
responsibilities and obligations of City for the retail sale and distribution
of Project Water within City's boundaries.
16. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or
other proceeding against the other party arising out of or relating to the
subject matter of this Agreement, its validity or any of the terms or
provisions thereof, then the prevailing party in such action, suit,
arbitration or other proceeding shall recover from the other party its
reasonable attorneys' fees costs incurred in connection therewith, in
addition to any other relief to which it may be entitled. Said attorneys'
fees shall include such fees for prosecuting or defending any appeal and
shall be recoverable, and shall be awarded for any supplemental
proceedings until the final judgment is satisfied in full.
17. NOTICES
All notices, payments, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties
hereto under this Agreement shall be personally served or deposited in
the United States mail depository first class postage prepaid, and
addressed as follows:
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728 -8300
Attention: General Manager
Page 8 of 10
s �
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Public Works Director
or such other address as OCWD or City shall direct in writing. Service of
any instrument or writing by mail shall be deemed complete 48 hours
after depositing in United States mail depository.
18. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon
and inure to the benefit of OCWD and City, and their respective
successors and assigns.
19. CONFLICTS
In the event of a conflict between the provisions of this Agreement and
the provisions of the Retailer Agreement, the provisions of the this
Agreement shall prevail.
Page 9 of 10
IN WITNESS WHEREOF, the parties herein have executed this Agreement
as of the date set forth above.
CITY OF NEWPORT BEACH,
a municipal corporation
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
9j �f� ,
K vn 'Murphy/
City Manager
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
APPROVED AS TO FORM
ATTEST:
LaVonne Harkless
City Clerk
BY Ec�r/,a BY 'L, i
General Counsel General Manager
Page 10 of 10
AGREEMENT
BETWEEN ORANGE COUNTY WATER DISTRICT AND CITY OF
NEWPORT BEACH REGARDING DELIVERY AND SALE OF
GREEN ACRES PROJECT WATER TO BONITA CREEK PARK
THIS AGREEMENT, made and entered into as of September 30, 1996,
by and between the Orange County Water District, a political subdivision of the State
of California, hereinafter referred to as "OCWD," and the City of Newport Beach, a
Municipal Corporation, hereinafter referred to as "City," for the use of Green Acres
Project water, hereinafter referred to as "Project Water," at Bonita Creek Park,
hereinafter referred to as "Site."
RECITALS
A. City is the exclusive retail water purveyor including water for residential,
industrial, commercial, public agency, agricultural and other uses within
City's boundaries, and produces and distributes water in part purchased
from the Metropolitan Water District ( "MWD ") of Southern California and
in part produced from the Orange County ground water basin, which
basin is managed by OCWD."
B. Site has the street address of 10 La Vida, Newport Beach, California.
Site is part of the City's public park system and such Site is owned,
operated and maintained by the City. Site currently receives water from
City's potable water system for its own use.
C. City has agreed to buy reclaimed water from OCWD pursuant to the
terms and conditions specified in that certain agreement, entitled,
"Agreement Between Orange County Water District & City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water,"
dated, January 16, 1991, and as may be subsequently amended,
hereinafter referred to as "Retailer Agreement." City executed said
Page 1 of 11
OM aoa. Rq , $TAR N,,.! I N
0 9
Retailer Agreement for the purpose of seeking to provide various City
sites and its present and future residents with a supplemental source of
water to meet their needs and to assist in the statewide objective of
conserving and utilizing to the maximum degree possible the water of the
People of the State of California, which water shall be recovered from the
operation of OCWD's Green Acres Project water reclamation operation
for all possible beneficial uses.
D. The Green Acres Project extension into Newport Beach is being
constructed for the purpose of conserving and beneficially reusing
wastewater received by OCWD from the County Sanitation Districts of
Orange County or the Irvine Ranch Water District, hereinafter referred to
as "IRWD;" such wastewater having been treated by OCWD or IRWD to
standards established by the State Health Department and transported
and sold by OCWD as Project Water to City. Such Project Water is
suitable for use in landscape and agricultural irrigation, and for industrial
and construction purposes in lieu of potable water.
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions herein contained, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline, service
laterals and metering facilities as part of the Green Acres Project to
convey Project Water to various user sites within City boundaries,
including said Site. All Project Water will originate from either the OCWD
Green Acres Project Treatment Facility, or a similar facility operated by
IRWD. The existing Green Acres facilities include a water treatment
facility, located at the offices of OCWD at 10500 Ellis Avenue, Fountain
Valley, California, and a transmission pipeline system. All pipelines,
pipeline appurtenances and service lines within the City's incorporated
boundary's that lie upstream of the reclaimed water service meter vaults,
hereinafter the totality of such facilities shall be referred to as "OCWD
Facilities," shall be owned by OCWD. City owns, operates and maintains
the Project water service meter vault; meter, piping and appurtenances
Page 2 of 11
within meter vault; and onsite piping facilities downstream of meter vault
on said Site; hereinafter the totality of such facilities shall be referred to
as "City Facilities." The point where OCWD's service line connects to
upstream end of reclaimed water meter vault shall hereinafter be referred
to as the "Point of Connection." The portion of OCWD Facilities which are
located within City's incorporated boundaries will be operated and
maintained by City as a contractor for OCWD pursuant to the terms and
conditions set forth in the Retailer Agreement. City shall also own and
maintain all devices of said Site's onsite potable water system including,
but not limited to, drinking fountain covers, backflow preventers, and
identification tags.
2. RULES AND REGULATIONS
City agrees that during the term of this Agreement and any extension
thereof, City shall comply with all rules and regulations promulgated now
and in the future by OCWD and subsequently by City relative to the sale
and use of Project Water and those rules and regulations promulgated
now and in the future by OCWD and subsequently by City relative to the
transportation and use of Project Water, hereinafter referred to as "Project
Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY CITY;
INSTANTANEOUS MAXIMUM FLOW
OCWD agrees to supply Project Water to City, and City agrees to
purchase Project Water from OCWD. The estimated annual demand for
the Site is projected to be thirty (30) acre -feet per year. Project Water
flow demands at the Site's service shall not exceed an instantaneous
maximum flow of one hundred and sixty (160) gallons per minute. By
entering into this Agreement, City's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project
Facilities by OCWD. To the extent that City's current use of Site property
necessitates the use of Project Water, City will continue to purchase
Project Water. In the event that the current use of the property
Page 3 of 11
discontinues or is modified, City may modify or terminate this Agreement
as applicable.
If at any time during construction or operation of the Onsite Facilities, real
or potential hazards, or evidence of a hazard, are found to exist, the City
shall take the necessary steps within its authority to insure that the
situation is remedied, and to protect the public health, as further set forth
in the Project Rules. Such remedies may include, but shall not be limited
to the City terminating Project Water service to the Site. In the event that
said hazards are not remedied by City to the satisfaction of a "Regulatory
Agency," defined herein as the California Regional Water Quality Control
Board - Santa Ana Region, state and local health departments, and
federal, state and county agencies, OCWD may terminate Project Water
service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY CITY; PRESSURE
OCWD agrees that all Project Water delivered to City from the Project
Facilities pursuant to this Agreement shall conform to the current and
future requirements established said Regulatory Agencies, having
jurisdiction to fix minimum standards for the quality of water, with respect
to City's anticipated use at Site.
OCWD shall deliver Project Water on a continuous basis at a pressure of
not less than one hundred pounds per square inch (100 psi) at the Point
of Connection between the hours of 9 p.m. and 6 a.m. City shall not exert
demand for Project Water between the hours of 6 a.m. and 9 p.m. unless
City's staff is present to ensure that the public does not come in contact
with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by City to OCWD for
Green Acres Project Water shall be the price then in effect under
Sections 2.4 and 2.5 of the Retailer Agreement.
Page 4 of 11
6. METERING AND MEASUREMENT OF FLOWS
City agrees that at locations on Site where irrigation water is used
exclusively, City shall maintain, at its own expense, a control valve or
valves and a meter at the Point of Connection for the purpose of
measuring the quantity of Project Water delivered to Site pursuant to the
terms of this Agreement. City shall read the service meter and record
Project Water usage for Site per the terms and conditions set forth in the
Retailer Agreement. OCWD shall be given access to said service meter
by City to take readings.
7. PAYMENT FOR PROJECT WATER
City shall issue pay warrant(s) to OCWD for the price of Project Water
delivered to the Site in accord with Section 2.7 of the Retailer Agreement.
8. LIMITATION OF USE
City understands and agrees that Project Water delivered from OCWD's
Green Acres Project Facilities pursuant to the terms hereof has restricted
uses, and City agrees to use such only upon the property of Site and only
for those uses and purposes provided for herein which are legally
permissible under the laws of the state, the Project Rules and rules
adopted by City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD's and City's obtaining the
necessary permits relating to the use of Project Water for landscape
irrigation. Both parties agree to file any and all applications and
undertake such proceedings as may be necessary to enable one or both
parties to carry out the undertaking described herein, and to pursue such
application and proceedings in good faith and with due diligence,
including any application required to be issued to one or both parties by
Regulatory Agencies. OCWD and City understand and agree that, where
Page 5 of 11
applicable, the parties will comply with the regulations set forth in
permits.
10. MONITORING.
OCWD's responsibility for management and monitoring the Project Water
produced and delivered hereunder shall cease upon delivery to Site at
the Point of Connection. Operation, management, maintenance and
monitoring with respect to the storage, distribution and other facilities on
the Site shall be the responsibility of City. City further agrees to allow
Regulatory Agencies and /or OCWD's representatives to enter Site's
premises for monitoring, sampling, analysis and observation of Site's
Project Water facilities.
City understands and agrees that groundwater underlying property of
Site may also need to be monitored for quality. OCWD shall file for and
obtain a permit with all applicable fees waived by City to construct
groundwater monitoring well(s) as required by Regulatory Agencies. At
no expense to OCWD, City shall provide easement(s) to OCWD to
construct, at no expense to City, groundwater monitoring well(s) on Site.
City shall provide OCWD with access to such monitoring well(s) for the
purpose of carrying out all groundwater monitoring activities.
11. CONDITIONS PRECEDENT
This Agreement is conditioned upon: (1) OCWD making Project Water
available for sale; and (2) issuance of all necessary permits, certificates
and approvals by all Regulatory Agencies having jurisdiction over the
continued operation of water reclamation facilities and over the
production, distribution, sale and use of Project Water. This Agreement is
further conditioned upon approval by all federal, state and local agencies
having regulatory jurisdiction or grant funding responsibilities with regard
to the Project Facilities.
Page 6 of 11
0 0
12. CONDITIONS SUBSEQUENT
In the event that OCWD is unable to deliver Project Water through Project
facilities, OCWD reserves the right to notify City with a minimum of 24
hours advance notice, except in event of emergencies, that said
deliveries shall temporarily cease. OCWD shall provide City with a
minimum of 24 hours advance notice when resumption of Project Water
deliveries is expected at City's Site. In the event OCWD is unable to
provide delivery of Project Water, City may temporarily provide water to
Site from alternative sources in accordance with Project Rules and
requirements of any Regulatory Agency having jurisdiction over Site.
Furthermore, in the event that OCWD ceases producing and distributing
Project Water or in the event that the treatment criteria imposed by any
Regulatory Agency exceeds those existing as of the date of this
Agreement, either Party shall have the option of canceling this
Agreement. OCWD shall convert service on the Site back to a potable
water system at no expense to City if this Agreement is canceled within
ten (10) years immediately following the date hereof. The cost of
conversion back to a potable system shall be borne by City if said
conversion occurs after ten (10) years from the date of this Agreement.
13. RETROFITTED ONSITE FACILITIES
City acknowledges that OCWD has contributed significantly to retrofitting
Site's irrigation water service facilities and in furnishing safeguards for
Site's potable water system to accommodate the use of Project Water.
Said retrofitted facilities and safeguards represent a significant
expenditure of public funds by OCWD for construction costs and
permitting fees. Therefore, in the event City abandons onsite Project
Water facilities within ten (10) years from the day and year first above
written, then City shall reimburse OCWD for the residual construction
costs and permitting fees remaining on said retrofitted facilities and
safeguards based on an uniform distribution of said total costs and fees
over the term of the contract, including five and one -half percent (5.5 %)
Page 7 of 11
9 0
interest on said residual costs and fees compounded annually and
calculated from the day and year first written above until abandonment
per attached Exhibit "A." Abandonment of Project Water facilities shall be
understood to mean an annual usage in any given year which is less
than ten percent (10 %) of the total irrigation water used at the Site.
14. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of the Project
Water from the Green Acres Project beyond that usable by City. City
reserves the right to enter into contracts with others for the sale of any
Project Water.
15. TERM
The term of this Agreement shall be ten (10) years from the day and year
first above written. The parties do hereby agree that any portion of this
Agreement may be revised by written amendment at any time by mutual
agreement of the parties hereto. The parties do hereby also agree that
one (1) year prior to the end of the term of this Agreement, all of the terms
herein shall be reviewed, and if all of the terms are mutually agreed upon
following such review, this Agreement shall be renewed.
16. ASSIGNMENT
This Agreement and the rights and benefits of City hereunder may be
assigned and transferred by City to any entity which assumes the
responsibilities and obligations of City for the retail sale and distribution
of Project Water within City's boundaries.
17. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or
other proceeding against the other party arising out of or relating to the
subject matter of this Agreement, its validity or any of the terms or
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provisions thereof, then the prevailing party in such action, suit,
arbitration or other proceeding shall recover from the other party its
reasonable attorneys' fees costs incurred in connection therewith, in
addition to any other relief to which it may be entitled. Said attorneys'
fees shall include such fees for prosecuting or defending any appeal and
shall be recoverable, and shall be awarded for any supplemental
proceedings until the final judgment is satisfied in full.
18. NOTICES
All notices, payments, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties
hereto under this Agreement shall be personally served or deposited in
the United States mail depository first class postage prepaid, and
addressed as follows:
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728 -8300
Attention: General Manager
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Public Works Director
or such other address as OCWD or City shall direct in writing. Service of
any instrument or writing by mail shall be deemed complete 48 hours
after depositing in United States mail depository.
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19. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon
and inure to the benefit of OCWD and City, and their respective
successors and assigns.
20. CONFLICTS
In the event of a conflict between the provisions of this Agreement and
the provisions of the Retailer Agreement, the provisions of the this
Agreement shall prevail.
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9
•
IN WITNESS WHEREOF, the parties herein have executed this Agreement
as of the date set forth above.
CITY OF NEWPORT BEACH,
a municipal corporation
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
City Manager
r MurpKy /
ATTEST:
LaVonne Harkless
City Clerk
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California C+<iFo
APPROVED AS TO FORM
By By
General Counsel General Manager
By '"�i_
Presidebt
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