Loading...
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 • C -3114 C-3(t5 C- 31t� C- 3Itl • • 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 f '. 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 rr n lJ . • 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 0 • 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. • Page 7 of 12 GAP End -User Agreement Big Canyon Country Club September. 1996 13. CONDITIONS PRECEDENT This Agreement is conditioned upon OCWD's completing and making operational the Green Acres Project by July 1, 1998, including the following: (1) the transmission pipeline is extended to the Site; (2) OCWD makes Project Water available for sale; and (3) all necessary permits, certificates and approvals are issued by all Regulatory Agencies having jurisdiction over the construction and operation of water reclamation facilities and over the production, distribution, sale and use of Project Water. This Agreement is further conditioned upon (i) OCWD's acquiring by July 1, 1998, acceptable right -of -way access from the Project Facilities to the SITE for transportation pipeline purposes, and (ii) OCWD and CITY gaining by July 1, 1998, the approval by all federal, state and local agencies having regulatory jurisdiction or grant funding responsibilities with respect to the Project Facilities. If the conditions specified in this Section 13 are not met within the given time limits, USER may cancel this Agreement. 14. CONDITIONS SUBSEQUENT In the event that CITY is unable to deliver Project Water through Project Facilities, CITY reserves the right to provide USER with a minimum of seventy - two (72) hours advance notice, except in the event of emergencies, that said deliveries shall temporarily cease. CITY shall provide USER with a minimum of twenty -four (24) hours advance notice when resumption of the delivery of Project Water to USER's SITE is expected. In the event CITY is unable to deliver Project Water to USER or defaults under this Agreement, CITY must provide USER with water from alternative sources at the full potable water rate, subject to the right of CITY to determine allocation of all water, both Project Water and potable, in the event of emergencies. If USER terminates this Agreement as authorized under the terms of this Agreement, CITY must provide USER with potable water in the place of Project Water. Furthermore, in the event that OCWD ceases producing and distributing Project Water or in the event that the treatment criteria imposed by any Regulatory Agencies exceeds those existing as of the date of this Agreement, either CITY or USER shall have the option to cancel this Agreement. CITY shall convert service on the SITE back to a potable water system(s) at no expense to USER if this Agreement is canceled by CITY during the initial term of this Agreement or USER pursuant to Sections 2 and 4 above. The cost of conversion back to a potable water system shall be bome by USER if said conversion occurs after the initial term of this Agreement. Page 8 of 12 • • • 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. • Page 9 of 12 J %� • . 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 • 0 • • 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 0 r1 u 0 AGREEMENT DRAFT GREEN ACRES RECLAIMED WATER PROJECT END -USER AGREEMENT FOR DELIVERY AND SALE OF RECLAIMED WATER TO NEWPORT BEACH COUNTRY CLUB THIS AGREEMENT is made and entered into this _day of . 1996 by and between the City of Newport Beach, a Municipal Corporation, hereinafter referred to as "CITY', and the Newport Beach Country Club, a private corporation, hereinafter referred to as "USER ". RECITALS 1. CITY is the exclusive retail water purveyor, providing water for residential, industrial, commercial, public agency, agricultural and other uses within CITY's boundaries. CITY produces and distributes water in part purchased from Metropolitan Water District ( "MWD ") of Southern California and in part produced from the Orange County groundwater basin, which basin is managed by the Orange County Water District ( "OCWD "). • 2. USER is a private corporation within the jurisdictional and service boundaries of CITY, and currently purchases potable water from CITY for its own use at The Newport Beach Country Club, 1600 East Coast Highway, Newport Beach, California, hereinafter, referred to as "SITE ". 3. CITY has agreed to buy reclaimed water from OCWD and resell such reclaimed water pursuant to the terms and conditions specified in that certain agreement entitled "Agreement Between Orange County Water District and City of Newport Beach Regarding Distribution and Sale of Green Acres Project Water" dated January 16, 1991, and as it may be subsequently amended, hereinafter referred to as "Retailer Agreement." City executed the Retailer Agreement for the purpose of seeking to provide its present and future residents with a supplemental source of water to meet their needs and to assist in the statewide objective of conserving and utilizing to the maximum degree possible the water of the People of the State of California, which water shall be recovered from the operation known as the "Green Acres Project" for all possible beneficial uses. 4. The Green Acres Project is being planned for extension into CITY's service area for the purpose of conserving and beneficially reusing wastewater from the County Sanitation Districts of Orange County or the Irvine Ranch Water District, ( "IRWD "), such wastewater having been treated by OCWD or IRWD to standards established by the State Health Department and transported and sold by • OCWD as "Project Water" to CITY to be resold to Project Customers. . • 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 Ll 0 • 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. 0 Page 5 of 12 �1 0 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 • 1] • •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 L� 9 L, J 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 0 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 0 L J Page 11 of 12 `1. El 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 • • 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 • 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