HomeMy WebLinkAboutC-3114 - End-User Ten-Year Agreement, Green Acres ProjectRG R E E M E �
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 i — t Z. � , 199§, 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 ( "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 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 Eastbluff School (play fields only) 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 water
reclamation project known as the Green Acres Project ( "GAP "). GAP is e
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:
RECORD NO._L#13i
OCWD DOC A4C/�S-
• GAP End -User Agreement
Owport-Mesa Unified School District
1998
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, four (4) 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 forty five (45) 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 9
GAP End -User Agreement
• awport-Mesa Unified School District
1998
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 Useris 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, control valves and meters for Eastbluff School at 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 9
• GAP End -User Agreement
awport-Mesa Unified School District
1998
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 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 9
• GAP End -User Agreement
Owport -Mesa Unified School District
1998
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 bome 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 anytime 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 9
GAP End -User Agreement
• Owport -Mesa Unified School District
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
2965 -A Bear Street
Costa Mesa, CA 92626
Attention: Carolyn B. Stocker, Executive Director
Business Services & Auxiliary Operations
Page 6 of 9
•
GAP End -User Agreement
awport-Mesa Unified School District
1998
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.
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.
Page 7 of 9
•
GAP End -User Agreement
wport-Mesa Unified School District
1998
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:
LaVonne Harkless
City Clerk
City of Newport Beach,
a municipal corporation
Thdmda Edwards
Mayor
Newport -Mesa Unified School District
a private corporation
_
dga es, Interim Executive Director
Busine s Services & Auxiliary Operations
Page 8 of 9
•
ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
GAP End -User Agreement
ewport-Mesa Unified School District
1998
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 EASTBLUFF SCHOOL (PLAY FIELDS ONLY) entered into as of
/—/.z , 199q, 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 Eastbluff School (play fields only), Newport Beach, CA, for
landscape irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
C s� 0.
General Counsel President
f:\ groups \pubworks\agmt\98\cnmusd.doc
. 010-14M. _ !L
Page 9 of 9
AGREEMENT
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 qg&) 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 ( "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 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:
STAR NO. 3
• 0 GAP End -User Agreement
Newport-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, twenty -eight (28) 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
• • GAP End -User Agreement
Newport-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.
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, 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
Newport-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
Newport-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
Newport-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
Page 6 of 11
• GAP End -User Agreement
Newport-Mesa Unified School District
September, 1996
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.
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.
Page 7 of 11
GAP End -User Agreement
Oewport-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:
- 6& ',�_
Robin Clauson For
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
City of Newport Beach,
a municipal corporation
tom/
John ljl6djes Jan Deb
Mayor Mayor o Tem
Newport -Mesa Unified School District
Carolyn B. Stocker, Executive Director
Business Services & Auxiliary Operations
Page 8 of 11.
GAP End -User Agreement
Newport-Mesa Unified School District
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 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 President
de \09 -17- 96\2:20
i
General Manager
Page 9 of 11
•
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if tell
FROM:
BY THE CITY COUNCIL
CITY OF NEWPORT BEACH
SEP 2 3
APPROVED
Mayor & Members of the City Council
Public Works Department
a (3s)
September 23, 1996
CITY COUNCIL AGENDA
ITEM NO. 8
SUBJECT: GREEN ACRES END -USER AGREEMENTS
vG'306
RECOMMENDATIONS:
Approve the End -User Agreements and authorize the Mayor and City Clerk
to execute the agreements with:
Newport Mesa Unified School District ( NMUSW - Corona •del Mar High
School
2. The Bluffs Homeowners Association (Bluffs)
3. Big Canyon Country Club
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.
• 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
Mic el J. Sinacori, P.E.
Utilities Engineer
MJS:cIa
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.
•
0
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
F
0
GREEN ACRES
RECLAIMED WATER PROJECT
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.
CA
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
GREEN ACRES
E
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.
0
0 0 DRAFT
9 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.
0
+ • GAP End -User Agreement
Big Canyon Country Cub
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.
0
Page 2 of 12
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GAP End -User Agreement
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
Page 3 of 12
GAP End -User Agreement
Big Canyon Country Club
September, 1996
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.
Page 4 of 12
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. • GAP End -User Agreement
Big Canyon Country Club
September, 1996
0 6. METERING AND MEASUREMENT OF FLOWS
0
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
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• 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.
10. 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
• 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.
•
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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 bome by USER if said conversion occurs after the initial term of this
Agreement.
Page 8 of 12
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• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
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 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.
•
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• . GAP End -User Agreement
Big Canyon Country Club
September, 19%
(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 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: 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
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• 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
. , GAP End -User Agreement
Big Canyon Country Club
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 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: \catldebbielagWgcan.doc
09 -16-96
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
President
General Manager
Page 12 of 12
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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.
. • GAP End -User Agreement
Newport Bexh Country Club
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
• •GAP End -User Agreement
Newport Beach Country Cbb
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 Clib
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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8. LIMITATION OF USE
. GAPEnd- WerAgreernent
Newport Beach Country Cktb
September, 19%
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 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.
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Page 5 of 12
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10. INDEMNIFICATION
• GAP End -User Agreement
Newport Beach Covury Ck1b
September, 1996
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
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. 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 Cointry CWb
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
GAP End -User Agreement
Newport Beach Country 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
borne 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
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17. ARBITRATION
• GAP End -User Agreement
Newport Beach Co retry CYib
September, 1996
(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 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.
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
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GAP End -User Agreement
Newport Beach country Mb
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
•
GAP End -User Agreement
Newport Beach Country CtJb
Septenter,19%
. 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
Assistant City Attorney
ATTEST:
John Hedges
Mayor
THE NEWPORT BEACH COUNTRY CLUB
a private corporation
LaVonne Harkless Jerry L. Anderson
City Clerk Director of Golf
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Page 11 of 12
`1.
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ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
GAP End -User Agreement
Newport Beach country Ck1b
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:
General Counsel
f:\catXdebbie\ag\clean\nbcc.doc
09 -16.96
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
President
General Manager
Page 12 of 12
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A�GREEME�IT
. 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 ( "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 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
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GAP End -User Agreement
ewport-Mesa Unified School District
September, 1996
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 0
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
E
GAP End -User Agreement
wport-Mesa Unified School District
September, 1996
If at any time during construction or operation of the On -Site Facilities, real or
is 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.
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, control valves and meters (sized at four - inches [49) 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
i ;
• GAP End -User Agreement
eewport -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
/t
GAP End -User Agreement
awport-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 6 of 11
• GAP End -User Agreement
Oewport-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 attomeys' 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
Page 6 of 11
0
GAP End -User Agreement
Owport-Mesa Unified School District
September, 1896
• 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.
0
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.
Page 7 of 11
GAP End -User Agreement
ftewport-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 S of 11
1
. ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
•
•
1
J
GAP End -User Agreement
ewpon -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
de \09 -17- 96\2:20
President
General Manager
Page 9 of 11
0 •
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
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:
l�?
•
GAP End -User Agreement
Bluffs 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.
Page 2 of 9
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.
Page 3 of 9
0
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
GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
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 reviewers, 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.
Page 6 of 9
E
•
•
�� i f
16
17
0
INDEMNIFICATION
AGAP End -User Agreement
uffs 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
this Section do not extend to damages, losses, injuries,
resulting from the acts or omissions of User or its
representatives and employees.
ATTORNEYS' FEES AND EXPENSES
of City specified in
lawsuits or claims
officers, agents,
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.
Page 6 of 9
GAP End -User Agreement
'Re 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
11
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.
Page 7 of 9
0
GAP End -User Agreement
TPS Bluffs Homeowners Association
September, 1998
. 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
•
is
City of Newport Beach,
a municipal corporation
John Hedges
Mayor
The Bluffs Homeowners Association
a private corporation
Ron Foster
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
General Manager •
de \09 -04 -96 \3:15
� C%
Page 9of9