HomeMy WebLinkAboutC-3116 - End-User Ten-Year Agreement, Green Acres ProjectAGREEMENT BETWEEN ORANGE COUNTY WATER
DISTRICT, CITY OF NEWPORT BEACH
AND BIG CANYON COUNTRY CLUB
REGARDING RETROFITTING IRRIGATION
FACILI'T'IES AT BIG CANYON COUNTRY CLUB
FOR USE OF GREEN ACRES PROJECT WATER
This Agreement (the "Agreement ") is made and entered into as of
December 18, 1996, by and between the ORANGE COUNTY WATER DISTRICT, a
political subdivision of the State of California, hereinafter referred to as "OCWD," the
CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as
"CITY," and BIG CANYON COUNTRY CLUB, a private, non -profit mutual benefit
corporation, hereinafter referred to as "USER."
RECITALS
A. OCWD is the producer of reclaimed water from the Green Acres
Project, hereinafter referred to as "Project Water." CITY has agreed to buy Project
Water from OCWD and resell it to end -users pursuant to the terms and conditions
specified in that certain Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water, dated as
of January 16, 1991.
B. USER currently purchases potable water from CITY for its own use
at the Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. USER has agreed to purchase Project Water from CITY for
allowable, suitable nonpotable uses, specifically landscape irrigation of its golf course and
certain related facilities (hereinafter referred to as the "SITE "), in lieu of potable water
currently purchased from CITY, except for the irrigation of putting greens, the perimeter
of selected fairways located adjacent to residences, and elsewhere on the SITE as agreed
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OCND DOC.
vicWD00C.�r�L� - /D'�l� STAR NO. —54
to by USER and CITY and within acceptable State Health Department standards, as set
forth in that certain "Third Amended and Restated Agreement; Green Acres Reclaimed
Water Project End -User Agreement for delivery and sale of reclaimed water to Big
Canyon Country Club" (the "End -User Agreement ") dated as of September 30, 1996, by
and between CITY and USER.
D. USER acknowledges the benefit of receiving Project Water for use
as irrigation water at the SITE.
E. OCWD and CITY acknowledge the benefit of having USER receive
Project Water during the time period specified herein.
F. OCWD and CITY acknowledge that USER will incur substantial
costs for retrofitting the existing irrigation system for the use of Project Water at the
SITE.
AGREEMENT
NOW, THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions herein contained, the parties hereto agree as follows:
1. USER has agreed to receive Project Water subject to the terms and
conditions of the End -User Agreement. OCWD and CITY have agreed to pay USER
for the retrofit of USER's irrigation system. Those payments are set forth herein.
2. OCWD shall (a) contribute to USER Five Hundred Thousand
Dollars ($500,000) in immediately available funds on March 1, 1997, and (b) be
responsible for the design and construction of the Project Water service connection and
bear all costs associated therewith.
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3. CITY shall (a) contribute to USER One Hundred Eight Thousand
Dollars ($108,000) in immediately available funds on July 1, 1997, (b) pay for the
construction and maintenance of the Pump Station on the SITE, and (c) reimburse
USER for the energy costs associated with the Pump Station for ten (10) years following
the date Project Water is provided to the SITE.
4. USER acknowledges that OCWD's and CI TY's contributions
towards preparing the SITE for the use of Project Water represents a significant
expenditure of public funds. Therefore, in the event USER abandons the use of Project
Water within ten (10) years from the day and year first above written except as provided
below, USER shall reimburse OCWD and CITY for said contributions in Sections 2 and
3 above, respectively (each, the "Principal ") less the Principal Forgiven (defined herein
as ten percent (10 %) of Principal per year for each year Project Water is used), plus the
cumulative interest (defined herein as six percent (6 %) compounded annually from the
date such Principal was provided to USER) on the Residual Principal (defined herein as
Principal less Principal Forgiven) at the time of abandonment, as set forth in Exhibits A
and E respectively, attached hereto and incorporated herein. Abandonment of Project
Water shall be understood to mean usage of Project Water which is less than 50
acre -feet in any twelve (12) month period. USER shall be exempt from said
reimbursement requirement if USER abandons the use of Project Water pursuant to
Sections 2. 4. 13 or 44 of the End -User Agreement.
5. This Agreement and the rights and benefits of OCWD and CTTY
hereunder may be assigned or transferred by OCWD and CITY to any entity that
assumes the responsibilities and obligations of OCWD and /or CITY for the sale and
distribution of Project Water, provided, however, that OCWD and CITY shall remain
fully liable for all of the responsibilities and obligations of OCWD and CITY hereunder,
respectively. USER shall not assign or transfer the rights and benefits of USER under
this Agreement to any entity without the prior written consent of OCWD and CITY,
which consent shall not be unreasonably withheld or delayed.
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6. In the event that any party hereto brings any action, suit, arbitration
or other proceeding against another party arising out of or relating to the subject matter
of this Agreement, its validity or any of the terms or provisions hereof, then the
prevailing party in such action, suit, arbitration or other proceeding shall recover from
the other party its reasonable attorneys' fees and costs incurred in connection therewith,
in addition to any other relief to which it may be entitled. Said attorneys' fees shall
include such fees for prosecuting or defending any appeal and shall be recoverable and
awarded for any supplemental proceedings until the final judgment is satisfied in full.
7. This Agreement is conditioned upon USER obtaining from Dr. Dale
Devitt by December 31, 1996 an opinion that the Project Water to be provided by CITY
to USER within the parameters set forth in Exhibit B -1 to the End -User Agreement may
be used by USER without any measurable adverse consequences (financial or otherwise)
to the SITE.
8. The term of this Agreement shall be for ten (10) years from the day
and year above written. The parties do hereby agree that any portion of this Agreement
may be revised by written amendment at any time by mutual agreement of the parties
hereto.
9. All notices, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties hereto under
this Agreement shall be personally served or deposited in the United States mail
depository, first class postage prepaid, and addressed as follows:
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728 -8300
Attention: General Manager
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CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
or such other address as the parties shall direct in writing. Service of any instrument or
writing by mail shall be deemed complete forty-eight (48) hours after depositing in
United States mail depository.
10. This Agreement, and all of the provisions herein, shall be binding
upon and inure to the benefit of OCWD, CITY and USER.
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IN WITNESS WHEREOF, the parties herein have executed this Agreement as of
the date set forth above.
APPROVED AS TO FORM:
ORANGE COUNTY WATER DISTRICT,
a political subdivision of
the State of California
By: C, " " �; //J—
General Counsel
CITY OF NEWPORT BEACH,
a municipal corporation
Attorney
ATTEST:
By:
President
By: f1
General Manager
Esq.
Y" a J. r
City ManagerVy
X6/ -)-'o. 4'&'
LaVonne Harkless
City Clerk
xei- 28W.v4 6 12/02/46
BIG CANYON COUNTRY CLUB,
a private corporation
22!22 vi
/John/Hamiltoly
Pr dent
NB1- 284407.V4 / 12=96
EXHIBIT A
GREEN ACRES PROJECT
BIG CANYON COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE ORANGE COUNTY WATER DISTRICT
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (OCWD Funding)
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
$500,000.00
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL
DEBT
1st Year
$500,000.00
$30,000.00
$530,000.00
2nd Year
$450,000.00
$74,880.00
$524,880.00
3rd Year
$400,000.00
$103,880.00
$503,880.00
4th Year
$350,000.00
$126,175.00
$476,175.00
5th Year
$300,000.00
$140,790.00
$440,790.00
6th Year
$250,000.00
$146,725.00
$396,725.00
7th Year
$200,000.00
$142,760.00
$342,760.00
8th Year
$150,000.00
$127,635.00
$277,635.00
9th Year
$100,000.00
$99,900.00
$199,900.00
10th Year
$ 50,000.00
$57,945.00
$107,945.00
After 10th Year
$ 0,00
$ 0.00
$ 0.00
EXHIBIT B
GREEN ACRES PROJECT
BIG CANYON COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE CITY OF NEWPORT BEACH
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (City of Newport Beach Funding)
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
$108,000.00
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL DEBT
1st Year
$108,000.00
$ 6,480.00
$114,480.00
2nd Year
$97,200.00
$16,174.08
$113,374.08
3rd Year
$86,400.00
$22,438.08
$108,838.08
4th Year
$75,600.00
$27,253.80
$102,853.80
5th Year
$64,800.00
$30,410.64
$ 95,210.64
6th Year
$54,000.00
$31,692.60
$85,692.60
7th Year
$43,200.00
$30,836.16
$74,036.16
8th Year
$32,400.00
$27,569.16
$59,969.16
9th Year
$21,600.00
$21,578.40
$43,178.40
10th Year
$10,800.00
$12,516.12
$23,316.12
After 10th Year
$ 0.00
$ 0.00
$ 0.00
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THIRD AMENDED AND RESTATED AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT FOR DELIVERY AND SALE
OF RECLAIMED WATER TO BIG CANYON COUNTRY CLUB
THIS THIRD AMENDED AND RESTATED AGREEMENT is made and
entered into as of this 30th day of September, 1996 by and between the City of Newport
Beach, a Municipal Corporation, hereinafter referred to as "CITY", and the Big Canyon
Country Club, a private, non - profit mutual benefit corporation, hereinafter referred to as
"USER".
RECITALS
A. With the exception of certain limited areas served by the Irvine
Ranch Water District ( "IRWD "), CITY is the exclusive retail water purveyor within
CITY's boundaries providing water for residential, industrial, commercial, public agency,
agricultural and other uses. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced from
the Orange County groundwater basin, which basin is managed by the Orange County
Water District ( "OCWD ").
B. USER is a private corporation within the jurisdictional and service
boundaries of CITY, and currently purchases potable water from CITY for its own use at
Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. CITY has agreed to buy reclaimed water from OCWD and resell
such reclaimed water pursuant to the terms and conditions specified in that certain
agreement entitled "Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water" dated as
of January 16, 1991, and as it may be subsequently amended, hereinafter referred to as
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"Retailer Agreement ". City executed the Retailer Agreement for the purpose of seeking
to provide its present and future residents with a supplemental source of water to meet
their needs and to assist in the statewide objective of conserving and utilizing to the
maximum degree possible the water of the People of the State of California, which water
shall be recovered from the operation known as the "Green Acres Project" for all
possible beneficial uses.
D. The Green Acres Project is being planned for extension into CITY's
service area for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the IRWD, such wastewater having
been treated by OCWD or IRWD to standards established by the State Health
Department and transported and sold by OCWD as "Project Water" to CITY to be
resold to Project Water customers.
E. USER desires to purchase Project Water from CITY for allowable,
suitable nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities (hereinafter referred to as "SITE "), in lieu of potable water currently
purchased from CITY, and CITY is willing to sell Project Water to USER.
AGREEMENT
NOW THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the
Green Acres Project that will convey Project Water to various locations within
CITY boundaries, including the SITE. All Project Water will originate from
either the OCWD Green Acres Project Water Treatment Facility or a similar
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facility operated by IRWD. OCWD owns the main transmission pipeline facility
and service line which serves USER upstream of CITY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as 'Project
Facilities ". C= owns, operates and maintains all reclaimed water service meter
vault piping, by -pass line piping, service meter vault, Pump Station (as hereinafter
defined), service meter and control valves, which facilities shall hereinafter be
referred to collectively as "City Facilities ". USER owns and maintains the
pipelines, backflow preventers, warning signs, warning tags and all appurtenances
downstream of CITY's reclaimed water service meter vault, which facilities shall
hereinafter be referred to as "On -Site Facilities" and are more fully set forth on
the drawings attached hereto as Exhibit A -1 (to be attached within sixty (60) days
of the execution of this Agreement).
The point where USER's piping connects to the downstream end of CITY's
reclaimed water service meter vault shall hereinafter be referred to as the "Point
of Connection ". The Point of Connection will be in the Jamboree Road parkway
near USER's maintenance yard entrance approximately 1,300 feet northerly of
San Joaquin Hills Road, as shown on Exhibit A -2 attached hereto (to be attached
within sixty (60) days of the execution of this Agreement).
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CITY by
USER. USER shall also own and maintain all devices relating to USER's on -site
potable water system including, but not limited to, drinking fountain covers,
backflow preventers and identification tags.
CITY shall be responsible for all costs associated with constructing and
maintaining a pump station on the SITE (the "Pump Station "), which Pump
Station shall be owned by CITY. For ten (10) years following the date Project
NB1- 267654.V4 3 12/03/96
Water is provided to the SITE as provided herein, CITY shall be responsible for
all energy costs associated with the Pump Station, and USER shall be responsible
for all such energy costs thereafter. USER and CITY shall execute a separate
agreement in which USER will grant to CITY at no cost to CITY an easement or
license across USER's property to provide reasonable access for the construction,
installation and maintenance of the Pump Station. Such agreement will be
attached hereto within sixty (60) days of the execution of this Agreement as
Exhibit C
In addition, within sixty (60) days after the execution of this Agreement, USER
shall provide to CITY information with respect to USER's use of water,
fertilizers, water supplements and the costs thereof for the prior.five (5) year
period. Within sixty (60) days of beginning to purchase Project Water from CITY
under this Agreement, USER shall provide CITY with the same information for
the period between (a) executing this Agreement and (b) the purchase of Project
Water from CITY.
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be referred
to as "Project Rules ", provided that CITY shall have provided USER with a copy
of such Project Rules and shall provide USER with any modifications or additions
thereto within ten (10) days of the promulgation of such modifications or
additions. In the event that CITY and /or OCWD or any other governmental
agency shall promulgate any rule or regulation that shall cause the total cost to
USER for the use of Project Water to exceed the total cost to USER if it had
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used potable water instead of Project Water, USER may terminate this
Agreement upon thirty (30) days notice to CITY and as set forth in Section 14 of
this Agreement. For purposes hereof, the total cost to USER shall include all
costs and expenses of any kind or nature directly or indirectly associated with the
use of Project Water including, without limitation, the rate charged for such use
pursuant to this Agreement and the incremental costs incurred to comply with this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER; INSTANTANEOUS
MAXIMUM FLOW
CITY agrees to supply Project Water to USER and USER agrees to purchase
Project Water. The anticipated average annual Project Water usage at the Site is
two hundred ninety (290) acre -feet. Project Water flow demands at the SITE's
service shall not exceed an instantaneous maximum flow of two thousand two
hundred (2,200) gallons per minute. CITY's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project Facilities
by OCWD. In the event that the current use of the property discontinues or is
modified, USER may modify or terminate this Agreement, as applicable, subject
to the conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards or evidence of such hazards are found to exist, CITY reserves
the right and has the authority to take action to insure that the situation be
remedied and to protect the public health, as is further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
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4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees that all Project Water delivered to USER from the Project Facilities
pursuant to this Agreement shall conform to (a) the current and future
requirements established by the California Regional Water Quality Control Board
- Santa Ana Region, State and local health departments, and Federal, State and
county agencies having jurisdiction to fix minimum standards for the quality of
water with respect to USER's anticipated use, which Board, health departments
and agencies shall hereinafter be referred to as "Regulatory Agencies'; and (b)
such minimum standards set by Regulatory Agencies as will prevent the Project
Water from causing any damage to USER's property and all plants and vegetation
located thereon. Furthermore, CITY agrees that Project Water delivered to
USER pursuant to this Agreement shall conform to the requirements set forth in
Exhibit B -1 attached hereto (to be attached within sixty (60) days of the execution
of this Agreement). If the Project Water fails to conform to the above
requirements, CITY covenants that CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place, and USER may terminate this
Agreement if such requirements are not met within thirty (30) days. CITY
understands and acknowledges that even a minor interruption in water service will
have a significant impact upon the SITE and may result in significant interference
and damage to the conduct of USER's business. Except as provided in the final
sentence of Section 3 above, any loss, cost, damage or expense resulting, directly
or indirectly, from the cessation or termination of service shall be home by CITY.
In addition to the foregoing, CITY covenants that all Project Water delivered to
USER pursuant to this Agreement will not (x) emit any offensive odor, (y) cause
undesirable change to the environmental makeup of any of the lakes found on
USER's property, including any offensive change to the odor, algae level, color or
wildlife composition of such lakes, or (z) cause damage to USER's property or
grass, plants or other vegetation located thereon, which damage shall include
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excessive salt buildup. In the event that USER shall decide, in USER's
reasonable judgment, that any of (x), (y), or (z) above exists, CITY and USER
agree to use the following procedure:
NBI- 297654.V4
(1) USER shall notify CITY of the problem.
(2) CITY shall, within three (3) days of such notification,
investigate the problem.
(3) If CITY agrees that a problem exists, CITY will attempt to
remedy the problem. If CITY is unable to remedy the
problem within thirty (30) days after CITY receives notice
from USER, CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place.
(4) If CITY does not agree that a problem exists, CITY will
notify USER of the same within three (3) days after CITY
receives notice from USER. CITY and USER will meet to
discuss the issue within seven (7) days of such notification
from CITY.
(5) If CITY and USER are still unable to agree whether a
problem exists, CITY and USER shall together select a
mediator. CITY and USER shall then present their views to
the mediator, and the mediator shall decide whether a
problem exists. CITY and USER agree to be bound by the
mediator's decision; however, CM and /or USER may
pursue the matter through arbitration as provided in Section
A hereof.
(6) If the mediator decides that a problem exists, the mediator
shall proscribe the course of action CITY must take to
remedy the problem. CITY must attempt immediately
thereafter to remedy the problem in the manner proscribed.
If CM is unable to remedy the problem within thirty (30)
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days of receipt by CITY of the proscribed course of action
from the mediator, or within such longer period as deemed
reasonable by the mediator, CITY will terminate the flow of
Project Water to the SITE and provide potable water in its
place.
(7) If the mediator decides that no problem exists, USER must
continue to accept Project Water as contemplated herein.
The replacement of Project Water by potable water as provided above shall be on
a temporary basis only; once CITY and USER agree that the situation has been
remedied, CITY shall provide Project Water in the place of potable water on the
SITE. If there is disagreement as to whether the situation has been remedied,
CITY and USER shall follow the procedure outlined above to resolve such
dispute.
Project Water shall be delivered on a continuous basis at a pressure of not less
than ninety pounds per square inch (90 psi) for demands under thirteen hundred
gallons per minute (1,300 gpm), and not less than eighty pounds per square inch
(80 psi) for demands from thirteen hundred one gallons per minute (1,301 gpm)
to two thousand two hundred gallons per minute (2,200 gpm) at the Point of
Connection between the hours of 8:00 p.m. to 6:00 am. USER shall not exert a
demand for Project Water between the hours of 6:00 a.m. and 8:00 p.m. unless
USER's staff is present to ensure that the public does not come into contact with
Project Water.
5. PRICE OF PROJECT WATER
CITY acknowledges the concerns of USER regarding (a) the potential need to
add or adjust fertilizers and /or water supplements to the Project Water in order
to maintain high quality fairway turf, and (b) the potential need to use additional
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amounts of water in order to offset the increased amounts of nutrients in the
Project Water. CITY desires to comply with State law by only requiring USER to
use reclaimed water in its irrigation operations if CITY supplies Project Water to
USER at a cost less than or comparable to the cost of potable water.
Therefore, during the entire term of this Agreement, the price to be paid by
USER for Project Water delivered by CITY shall not exceed the lower of (a)
eighty percent (80 %) of the weighted average of CITY's retail rates for potable
water, excluding any surcharges that are based on usage of potable water, as such
rates are established by resolution of the City Council and enforced on the date of
delivery of the Project Water, or (b) the lowest rate then offered by CITY to any
purchaser of reclaimed water, whether such rate is determined as a percentage of
CITY's retail rate for potable water or otherwise. The retail rates for potable
water shall be subject to modification as determined by and within the discretion
of the City Council. At least ten (10) days prior to the adoption of a resolution
establishing the water rates of CITY and /or modifying the purchase price of
Project Water, CITY shall give written notice to USER and provide notice as
prescribed in the City Municipal Code of a public hearing on the resolution and
price which shall apply following adoption of said resolution. Failure to give
notice shall not invalidate the action of the City Council.
If, despite the reduced rate charged USER for Project Water in the preceding
paragraph, USER believes that unreimbursed incremental costs have been
incurred as a result of the use by USER of Project Water that would not have
been incurred if USER had used potable water, the following steps shall be taken:
Within six (6) months after the end of this two (2) year period, and within six (6)
months after the end of each two (2) year period thereafter, USER shall submit
to CITY an itemized account of the costs expended during the previous two years
that were necessary to accommodate the use of Project Water on the SITE,
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including, without limitation, costs of fertilizers, water supplements, and /or other
additives, costs of construction of any special systems, such as a gypsum- injection
system, costs of any special processes, such as deep tine aeration, and costs of
excess Project Water that was needed to offset the increased amounts of nutrients
in the Project Water. CITY shall review this information and, with the help of
landscape and irrigation specialists, shall determine which costs may be solely
attributed to USER's use of Project Water as opposed to potable water on the
SITE. If USER disagrees as to CITY's determination, CITY and USER shall
select a mediator to settle the dispute as set forth in Section 4(514(51 herein. CITY
shall then make an adjustment to the rate for Project Water that will (a)
reimburse USER for the costs incurred during the previous two (2) years that are
attributed solely to the use of Project Water as opposed to the use of potable
water, and (b) compensate USER for the costs that are anticipated to be incurred
during the next two (2) years that are attributed solely to the use of Project Water
as opposed to potable water. The adjustment described in the previous sentence
shall be to the extent necessary for CITY to comply with State law that requires
CITY to provide Project Water to USER at a cost, including all expenses
associated therewith, that is less than or comparable to the cost of potable water.
USER and CITY may enact a formal process that implements the intent of this
paragraph.
6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, C=
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY or a designated representative of CITY
shall periodically read the service meter and record usage of Project Water onto a
schedule.
NB1- 287654.V4 10 12103/96
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CITY's regular billing cycle. Said invoices shall be paid within nineteen
(19) days of the billing date. CITY retains the right to change billing cycles and
due dates as necessary upon sixty (60) days prior written notice to USER, so long
as such change is consistent with formally adopted City-wide practices and
procedures and State law.
8. LINMATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for these uses.
9. COVENANTS, REPRESENTATIONS AND WARRANTIES
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's
irrigation needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project
Facilities and City Facilities have complied and will comply with all
regulations promulgated by all Regulatory Agencies and all other
applicable laws.
NB1- 287654.V4 11 12103/96
(c) CITY will use all commercially reasonable efforts to supply to
USER Project Water that falls within the parameters set forth in
Exhibit B -2 attached hereto.
(d) CITY will provide USER with all engineering support requested by
USER, without charge, including the assistance of CITY engineers
and other staff, to assist in the review of USER's irrigation system
redesign for the purposes contemplated herein.
(e) At CITY's cost, CITY will make presentations to USER, USER's
club members and related homeowners' associations with respect to
the Green Acres Project and Project Water.
(f) In the event that CITY is in breach or default under this
Agreement, at USER's election, CITY shall assign to USER all of
its rights and remedies under the Retailer Agreement.
CITY hereby represents and warrants as follows:
(a) USER may use potable water to irrigate putting greens, the
perimeter of selected fairways located adjacent to residences, and
elsewhere on the SITE as agreed to by USER and CITY and within
acceptable State Health Department standards.
(b) OCWD is not a party to any agreement between CITY and a user
of Project Water.
10. INDEMNIFICATION
NB1- 287654.V4 12 1ZMJ96
CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or demands,
including (a) all consequential damages; (b) all damages to any natural resources,
and the costs of any required or necessary repair, clean up, response cost, or
detoxification of the SITE or any portion thereof, and the preparation and
implementation of any closure, remedial or other required plans; and (c)'all costs
and expenses incurred in connection with clauses (a) and (b), including all
attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or
damage, including clauses (a), (b) and (c) above, shall collectively be referred to
herein as "Damages "), which arise directly or indirectly out of (x) the use by
USER of the Project Water as opposed to potable water as contemplated herein,
(y) the existence or alleged existence of any Hazardous Substances (as defined
below) in the Project Water, or (z) the failure to remove any Hazardous
Substances from the Project Water, unless such suit, claim or demand is caused
primarily by the gross negligence or willful misconduct of USER, its directors,
agents and employees, or the grossly negligent operation, maintenance or repair
by USER of On -Site Facilities required to be operated, maintained or repaired by
USER pursuant to this Agreement. The foregoing indemnity shall apply to any
residual contamination on, under or about the SITE, as well as claims of any
neighboring property owners or occupants, and to any contamination of any
property or natural resources, arising from the Project Water. Upon receiving
knowledge of any suit, claim or demand asserted by a third party that USER
believes is covered by this indemnity, USER shall give CTIY notice of the matter
and an opportunity to defend it, at CITY's cost and expense, with legal counsel
satisfactory to USER. USER may also require CITY to so defend the matter.
CITY will pay all fees or penalties imposed by any Regulatory Agency or any
other governmental authority for any violation of any code, regulation or law with
respect to the transportation, use or chemical composition of the Project Water.
NB1- 287654M4 13 12/03196
The obligations of CITY under this Section 10 shall survive the expiration or
termination of this Agreement.
CITY acknowledges that excess water from USER irrigation operations and from
lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water will
drain into the Upper Newport Bay as well. CITY agrees to indemnify, defend,
save and hold harmless USER, its directors, agents and employees from and
against any and all Damages which arise directly or indirectly out of such drainage
of Project Water into the Upper Newport Bay as well as any modification or
termination of USER's right to allow its excess water to drain into the Upper
Newport Bay when the modification or termination is required because of
USER's use of Project Water as contemplated herein.
As used herein, "Hazardous Substances" shall mean (a) any chemical, compound,
material, mixture or substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Law (as defined below) as a
"hazardous substance ", "hazardous material", "hazardous waste ", "contaminant" or
any other formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity" or "TCLP
toxicity'; and (b) any other chemical, material, or substance that, because of its
quantity, concentration, or physical or chemical characteristics, exposure to which
is limited or regulated for health and safety reasons by any governmental
authority, or which poses a significant present or potential hazard to human health
and safety or to the environment if released into the workplace or the
environment. "Environmental Lam' 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
NBl•287654.V4 14 12/03/96
•
other requirements of governmental authorities relating to health, safety, the
environment or to any Hazardous Substances.
11. PERNMS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's reasonable cooperation, any and all applications and to
undertake such proceedings as may be necessary to enable OCWD, CITY and
USER to carry out the undertaking described herein, and to pursue such
applications and proceedings in good faith and with due diligence, including any
application required to be issued to OCWD by Regulatory Agencies. USER
understands and agrees that USER must comply with the regulations set forth in
permits if such permits apply to USER, provided that such compliance by USER
shall not materially increase the cost of Project Water or unreasonably interfere
with USER's golf course and related operations.
12. INTENTIONALLY DELETED
13. CONDITIONS PRECEDENT
(a) This Agreement is conditioned upon OCWD, CITY and USER
executing by December 18, 1996 that certain Agreement between
Orange County Water District, City of Newport Beach and Big
Canyon Country Club Regarding Retrofitting Irrigation Facilities at
Big Canyon Country Club for Use of Green Acres Project Water.
NBI- 287654.V4 15 12/03/96
(b) This Agreement is conditioned upon OCWD's completing and '
making operational the Green Acres Project by July 1, 19981
including the following: (a) the transmission pipeline is extended to
the Site; (b) OCWD makes Project Water available for sale; and
(c) all necessary permits, certificates and approvals are issued by all
Regulatory Agencies having jurisdiction over the construction and
operation of water reclamation facilities and over the production,
distribution, sale and use of Project Water. This Agreement is
further conditioned upon (y) OCWD's acquiring by July 1, 1998,
acceptable right -of -way access from the Project Facilities to the
SITE for transportation pipeline purposes, and (z) OCWD and
CITY gaining by July 1, 1998, the approval by all federal, state and
local agencies having regulatory jurisdiction or grant- funding
responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given
time limits, USER may cancel this Agreement.
(c) Within three (3) years from the date the conditions specified in
items (a), (b), (c), (y) and (z) above have been satisfied, the
redesign of USER's irrigation system to accommodate Project Water
shall have been completed and USER shall have begun purchasing
Project Water from CITY as provided herein.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy -
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty-four (24) hours advance notice when resumption of the delivery of Project
NB3- 287654.V4 16 l2MI96
• i
Water to USER's SITE is expected. In the event CITY is unable to deliver
Project Water to USER or defaults under this Agreement, CITY must provide
USER with potable water at the potable water rate or reclaimed water at the
Project Water rate, subject to the right of CITY to determine allocation of all
water, both Project Water and potable, in the event of emergencies. If USER
terminates this Agreement as authorized under the terms of this Agreement,
CITY must contemporaneously provide USER with potable water in the place of
Project Water. Furthermore, in the event that OCWD ceases producing and
distributing Project Water or in the event that the treatment criteria imposed by
any Regulatory Agencies exceeds those existing as of the date of this Agreement,
either CITY or USER shall have the option to cancel this Agreement. CITY
shall convert service on the SITE back to a potable water system(s) at no expense
to USER if there is a cessation in service or this Agreement is canceled or
terminated for any reason (other than the expiration of the term pursuant to
Section 16 below), as well as converting back to Project Water if service is to be
restored pursuant to the terms of this Agreement.
15. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The initial term of this Agreement shall be ten (10) years from the day and year
first above written. USER shall have the option to extend said initial term for
two (2) additional ten (10) year terms, provided that USER gives CITY written
NB1- 2876%.V4 17 12103196
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 the written consent of CITY, which consent shall not be
unreasonably withheld.
18. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the
written request of any party be arbitrated pursuant to the applicable
rules of the American Arbitration Association. The arbitration shall
occur in the State of California. Judgment upon any award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction. The Federal Arbitration Act shall apply to the
construction and interpretation of this arbitration agreement.
(b) A single arbitrator shall have the power to render a maximum
award of one hundred thousand dollars ($100,000). When any party
files a claim in excess of this amount, the arbitration decision shall
NB1- 287654.V4 18 12/03196
be made by the majority vote of three (3) arbitrators. No arbitrator
shall have the power to restrain any act of any party.
(c) No provision of subparagraph (a) shall limit the right of any party to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including, but not limited to, injunctive relief) from a
court of competent jurisdiction. The institution and maintenance of
any remedy permitted above shall not constitute a waiver of the
rights to submit any controversy or claim to arbitration. The statute
of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall
be applicable in any arbitration proceeding.
19. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
NB1- 287654.v4 19 12103/96
20.
0
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or such other address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete forty -eight (48) hours
after depositing the same in a United States mail depository.
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.
NB1- 267654.V4 20 12/03196
��� i •
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 munigjpal corporation
Burnham, .,
City Attorney City Manager
BIG CANYON COUNTRY CLUB,
a private corporation
oqn Hamiltoly
esident
ATTEST:
°gym fJad&,
LaVonne Harkless
City Clerk
NB1- 287654.V4 21 12!03196
ACKNOWLEDGEMENT 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 TO BIG CANYON COUNTRY CLUB" entered into this
day of ' 1996, by and between the CITY of
Newport Beach, as the Retailer of Project Water, and Big Canyon Country Club, as the
USER of Project Water, for delivery and sale of Project Water to Big Canyon Country
Club, One Big Canyon Drive, Newport Beach, CA, for landscape irrigation.
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
L./C4 ,5'
Clark Ide, Esq.
General Counsel
William R. Mills, Jr. �.
General Manager
7
GeeFge- erne esley M. Bannister
President
NB1- 287654. V4 22 12/03/96
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PUMP STATION
POINT OF
II
CONNECTION (P.00.)
I — RECLAIMED
WATER METER
BIG CANYON COUNTRY CLUB
PUMP STATION LEASE SITE
FOR GREEN ACRES PROJECT
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RECLAIMED WATER
PUMP STATION
AND METER SITE
EXHIBIT A -2
CITY OF NEWPORT BEACH
PUBW %CMM C&AMme4r
64+WM A. USTA1gY DArE. wys A997
E
EXHIBIT B -1
PROJECT WATER QUALITY CONTRACTURAL LIMITS
Water Ouality Parameter
* Maximum 3 -Year Average Limit
Electrical Conductivity (EC.)
Total Dissolved Solids (IDS)
Sodium Adsorption Ratio (SAR)
Adjusted Sodium Adsorption Ratio (SAR,di.)
Bicarbonate (as HCO3 ion)
Boron (B)
Chloride (CI)
Sodium (Na)
1,550 umhos/cm or 1.55 dS /m
900 mg/L
5.7
11.6
250 mg/L
0.50 mg/L
250 mg/L
200 mg/L
Bacteriological A minimum of 95% of all health department required .
samples collected at the treatment plant shall comply
with the following:
• Not exceed a median value of 2.2 coliforms per
100 ml for any 7 consecutive daily samples.
• Not exceed 23 coliforms per 100 ml in daily
samples.
Electrical Conductivity (EC,) Limit
at the Green Acres Treatment Plant
** Maximum 2 -Day Average 1,725 umhos /cm or 1.725 dS /m
* ** Not to Exceed 1,775 umhos /cm or 1.775 dS /m
* "3 -Year " shall be understood to mean three consecutive calendar years (i.e., January through December).
" Average" shall be understood to mean the average concentration of any said parameter in Project Water as
measured at the Orange County Water District's Green Acres Treatment Plant and the Irvine Ranch Water
District's Michelson Water Reclamation Plant. Either plant can serve as a source for Project Water.
Compliance with the defined parameter limits shall be determined on an annual basis immediately after all
water quality results for the most recent calendar year of a given three -year period become available.
"• EC limit in Project Water produced solely from the Green Acres Treatment Plant. This parameter shall be
determined by averaging over a two -day period the EC measurements taken at the plant by Orange County
Water District staff and confirmed by EC measurements taken at Big Canyon Country Club by its staff.
sss EC limit in Project Water produced solely from the Green Acres Treatment Plant. Compliance with this
limit shall achieved if Project Water does not exceed the limit on more than two occasions each month based
upon EC measurements taken every two hours at the plant by Orange County Water District staff and
confirmed by EC measurements taken at Big Canyon Country Clubby its staff.
V17/97
• 0
EXHIBIT B -2
PROJECT WATER QUALITY GOALS
Water Oualitv Parameter
Electrical Conductivity (EC.)
Total Dissolved Solids (TDS)
Sodium Adsorption Ratio (SAR)
Adjusted Sodium Adsorption Ratio (SARAdi.)
Bicarbonate (as HCO3 ion)
Boron (B)
Chloride (Cl)
Sodium (Na)
* Maximum Annual Average Goal
1,500 umhos/cm or 1.50 dS /m
875 mg/L
5.5
11.3
240 mg/L
0.48 mg/L
240 mg/L
195 mg/L
Bacteriological A minimum of 981/6 of all health department required
samples collected at the treatment plant shall comply
with the following:
• Not exceed a median value of 2.2 coliforms per
100 ml for any 7 consecutive daily samples.
• Not exceed 23 coliforms per 100 ml in daily
samples.
Electrical Conductivity (EC.,) Goal
** Maximum 2 -Day Average 1,675 umhos/cm or 1.675 dS /m
* ** Not to Exceed 1,725 umhos/cm or 1.725 dS /m
* "Annual " shall be understood to mean a calendar year (i.e., January through December). "Average" shall
be understood to mean the average concentration of any said parameter in Project Water as measured at the
Orange County Water District's Green Acres Treatment Plant and the Irvine Ranch Water District's
Michelson Water Reclamation Plant. Either plant can serve as a source for Project Water.
** EC limit in Project Water produced from the Green Acres Treatment Plant and the Michelson Water
Reclamation Pl ant. This parameter shall be determined by averaging over a two -day period the EC
measurements taken at the plant supplying Project Water by water district staff and confirmed by EC
measurements taken at Big Canyon Country Club by its staff.
* ** EC limit in Project Water produced solely from the Green Acres Treatment Plant. EC measurements
shall be taken every two hours at the plant by Orange County Water District staff and confirmed by EC
measurements taken at Big Canyon Country Club by its staff
4/17/97
! •
PUMP STATION LICENSE AGREEMENT
THIS PUMP STATION LICENSE AGREEMENT (this "Agreement ") is
dated as of July ate(, 1997 by and between BIG CANYON COUNTRY CLUB, a private,
non -profit mutual benefit corporation ( "Big Canyon "), and THE CITY OF NEWPORT
BEACH, a municipal corporation ('Newport Beach").
RECITALS
A. Big Canyon and Newport Beach are parties to that certain Third Amended
and Restated Agreement (Green Acres Reclaimed Water Project End -User Agreement
for Delivery and Sale of Reclaimed Water to Big Canyon Country Club) dated as of
September 30, 1996 (the "End -User Agreement "). Pursuant to the terms of the End -User
Agreement, Newport Beach must construct and maintain a pump station and any related
structures (collectively, the "Pump Station ") on property owned by Big Canyon (the
"Site ", which definition shall include all present and future irrigation systems owned by
Big Canyon). In accordance therewith, Big Canyon desires to grant to Newport Beach
certain limited rights over the Site in order to access the Pump Station.
B. Newport Beach acknowledges that the continuous operation of the Pump
Station is essential to the successful maintenance of Big Canyon's golf course at the Site.
AGREEMENT
NOW, THEREFORE, taking the foregoing Recitals into account and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. License Big Canyon hereby grants to Newport Beach a nonexclusive right
of entry over and across the Site (the "License ") for the purposes of constructing,
operating, maintaining, repairing and replacing the Pump Station. Big Canyon shall have
the right to approve the location, exterior appearance and noise generation level of the
Pump Station, which approval shall not be unreasonably delayed or withheld. It shall not
be unreasonable for Big Canyon to withhold its consent to the location of the Pump
Station if it materially interferes with the use or operation of the Site by Big Canyon or
Big Canyon's successors or assigns, agents, employees, tenants, purchasers or any person
or entity with whom Big Canyon has any business relationship, or any contractors,
invitees, licensees, carriers or customers of any of the foregoing.
2. Term of License. Newport Beach's rights to use the License shall
terminate on the earlier of (a) the date that Newport Beach removes the Pump Station
from the Site, (b) within sixty (60) days of receipt by Newport Beach of a notice of
NBl- 304012.V7 07/02/97
0 i
default under this Agreement, if such default is not cured within such time, or (c) the
date the term of the End -User Agreement ends, as such term may be extended pursuant
to the terms of the End -User Agreement.
3. Location of Pump Station. This Agreement does not confer upon Newport
Beach any right to locate the Pump Station on any portion of the Site except as shown
on Exhibit A and except as set forth in Section 1 above. Newport Beach and its agents
shall have absolutely no right to enter any structure constructed upon the Site except for
the structure enclosing the Pump Station.
4. Right to Enter Site. Newport Beach and its agents shall exercise the rights
granted under this Agreement at reasonable times during normal business hours and in a
reasonable manner; provided, however, if the accessing of the Pump Station blocks
driveways or otherwise interferes with traffic circulation, parking or the operation of the
business located on the Site, then Newport Beach agrees to access the Pump Station at
times when the business operating upon the Site is closed unless the Pump Station is
experiencing a malfunction and /or an emergency situation is occurring.
S. Damage to the Site. Neither Newport Beach nor its agents shall in the
exercise of its rights under this Agreement cause any damage to the Site. If Newport
Beach or its agents cause any damage to the Site in the exercise of its rights under this
Agreement, including any damage to any landscaped area, Newport Beach shall cause
the same to be repaired at Newport Beach's expense within ten (10) days of demand by
Big Canyon. If Newport Beach fails to repair such damages within such period, Big
Canyon may perform such repairs and obtain reimbursement from Newport Beach for
the cost thereof.
6. Repair of Pump Station. Newport Beach shall cause the Pump Station to
be incorporated into (a) the alarm system currently operated by Newport Beach for all
other pump stations that it maintains, which system causes alarms to alert Newport
Beach personnel whenever a pump station is experiencing problems, or (b) any such
system that is adopted in the future by Newport Beach that provides notice to Newport
Beach personnel that a certain pump station is experiencing problems. Newport Beach
further covenants that it will respond to problems that the Pump Station is experiencing
in accordance with Newport Beach's standard policies and procedures and within a
period of time that is commensurate with the period of time that it takes Newport Beach
to respond to the problems of all of the other pump stations that it maintains. Big
Canyon acknowledges and agrees that, in the event.that more than one pump station is
experiencing problems at the same time, Newport Beach will respond first to the
problem that poses the greatest threat to the public. Notwithstanding the foregoing,
Newport Beach covenants to make best efforts to ensure that Big Canyon will not be
without Project Water for a period longer than 24 hours.
7. Maintenance of Pump Station. Newport Beach shall provide scheduled
maintenance to the Pump Station that is commensurate with the scheduled maintenance
Nei- 3MI2.V7 2 07MM
0
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that Newport Beach provides to the other pump stations that it operates. Newport
Beach shall (a) cooperate with Big Canyon in designing a maintenance schedule, (b)
keep Big Canyon informed of the maintenance schedule and any variations therefrom,
and (c) make every effort to avoid having to shut down the Pump Station during such
maintenance. Big Canyon shall cooperate with Newport Beach in designing a
maintenance schedule.
8. Indemnification: Remediation.
(a) Newport Beach shall indemnify, defend and hold harmless Big
Canyon and its successors and assigns, partners, members, principals, officers, directors,
shareholders, direct and indirect agents, employees and representatives from and against
all claims, suits, causes of action, injuries, damages, losses and liabilities of any kind
whatsoever, regardless of by or against whom caused or instigated, to the extent arising
directly or indirectly out of (i) Newport Beach's construction, operation, maintenance,
repair, replacement or other use of the Pump Station and /or Site; (ii) the presence on
the Site of the Pump Station; (iii) the presence on the Site of Newport Beach or its
agents, employees, contractors, carriers, invitees or licensees; or (iv) Newport Beach's
failure to provide Project Water to the Site as provided herein.
(b) If in the process of exercising any rights under this Agreement,
Newport Beach and /or its agents cause any Hazardous Materials to be released onto the
Site, Newport Beach shall promptly (but in no event more than ten (10) days after
written demand by Big Canyon) commence and diligently prosecute to completion the
remediation of the same under all applicable laws, and indemnify, defend and hold
harmless Big Canyon and its successors and assigns, partners, members, principals,
officers, directors, shareholders, direct and indirect agents, employees and representatives
from and against all claims, suits, causes of action, injuries,- damages, losses and liabilities
of any kind whatsoever, regardless of by or against whom caused or instigated, arising
directly or indirectly out of such release of Hazardous Materials. If Newport Beach fails
to timely remediate such contamination, Big Canyon shall have the right to exercise any
self -help remedies and obtain reimbursement from Newport Beach for the cost of such
self -help remedies.
(c) As used in this Agreement, the term "Environmental Laws" means
all federal, state or local laws, ordinances, regulations, orders and directives pertaining to
Hazardous Materials on, about or adjacent to any portion of the Site, or generally
dealing with the public health and safety and the protection of the environment. As used
in this Agreement, the term "Hazardous Materials" shall mean any oil or petrochemical
products, pcbs, asbestos, urea formaldehyde, salts, flammable explosives, radioactive
materials, hazardous wastes, toxic, corrosive, mutagenic or pathogenic substances or
related materials, including, without limitation, any substances defined as or included in
the definition of "hazardous substances;' "hazardous wastes;' "hazardous materials," "toxic
substances" or any similar term under any applicable Environmental Law.
tali- 3W12.v7 3 07102M
0 •
9. Costs of Enforcement. If any legal or equitable action or proceeding is
instituted to enforce or interpret any provision of this Agreement, the prevailing party in
such action shall be entitled to recover from the losing party all of its costs, including
court costs and reasonable attorneys' fees.
10. Captions. The paragraph headings or captions used herein are for
convenience only and are not a part of this Agreement and do not limit, define or
amplify the scope or intent of the provisions hereof.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California without reference to any
conflicts or choice of law principles.
12. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which shall constitute one and the
same document. Any signature page of this Agreement may be detached from any
counterpart of this Agreement and re- attached to any other counterpart of this
Agreement identical in form hereto but having attached to it one or more additional
signature pages.
13. Entire Agreement. This Agreement and the agreements referenced herein
contain the entire agreement between the parties relating to the subject matter thereof.
Any oral or other written representations or statements concerning the subject matter
thereof shall be of no force or effect.
14. Successors. This Agreement shall inure to and bind Big Canyon and its
successors and assigns in title to the Site and each and every portion thereof. Newport
Beach shall have no right to transfer or assign its rights or obligations under this
Agreement.
Ias1-3W11 7 4 07/02!97
0
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IN WITNESS WHEREOF, the parties herein have executed this
Agreement as of the date first above written.
CITY OF NEWPORT BEACH,
a municipal corporation
Robert Burnham, Esq.
City Attorney
ATTEST:
LaVonne Harkless
City Clerk
BIG CANYON COUNTRY CLUB,
a private corporation
NBl.3Ml2.V7
S -1
07MV97
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EXHIBIT A
LOCATION OF PUMP STATION
[See Attached]
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BIG CANYON COUNTRY CLUB CITY OF NEWPORT BEACH
PUMP STATION LEASE SITE PUBLIC WORKS DEPARTMENr
FOR GREEN ACRES PROJECT DRAVY, ACASTAWN DAE, OCTOBER army
SECOND AMENDED AND RESTATED AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT FOR DELIVERY AND SALE
OF RECLAIMED WATER TO BIG CANYON COUNTRY CLUB
THIS SECOND AMENDED AND RESTATED AGREEMENT is made and
entered into as of this 30th day of September, 1996 by and between the City of Newport
Beach, a Municipal Corporation, hereinafter referred to as "CITY", and the Big Canyon
Country Club, a private, non - profit mutual benefit corporation, hereinafter referred to as
"USER
RECITALS
A. With the exception of certain limited areas served by the Irvine
Ranch Water District ( "IRWD "), CITY is the exclusive retail water purveyor within
CITY's boundaries providing water for residential, industrial, commercial, public agency,
agricultural and other uses. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced from
the Orange County groundwater basin, which basin is managed by the Orange County
Water District ( "OCWD ").
B. USER is a private corporation within the jurisdictional and service
boundaries of CITY, and currently purchases potable water from CITY for its own use at
Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. CITY has agreed to buy reclaimed water from OCWD and resell
such reclaimed water pursuant to the terms and conditions specified in that certain
agreement entitled "Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water" dated as
of January 16, 1991, and as it may be subsequently amended, hereinafter referred to as
xsi- 287654.vi 1 11115/96
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"Retailer Agreement ". City executed the Retailer Agreement for the purpose of seeking
to provide its present and future residents with a supplemental source of water to meet
their needs and to assist in the statewide objective of conserving and utilizing to the
maximum degree possible the water of the People of the State of California, which water
shall be recovered from the operation known as the "Green Acres Project" for all
possible beneficial uses.
D. The Green Acres Project is being planned for extension into CITY's
service area for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the IRWD, such wastewater having
been treated by OCWD or IRWD to standards established by the State Health
Department and transported and sold by OCWD as "Project Water" to CITY to be
resold to Project Water customers.
E. USER desires to purchase Project Water from CITY for allowable,
suitable nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities (hereinafter referred to as "SITE"), in lieu of potable water currently
purchased from CITY, and CITY is willing to sell Project Water to USER.
AGREEMENT
NOW THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILrI'Y
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 SrM. All Project Water will originate from
either the OCWD Green Acres Project Water Treatment Facility or a similar
NBl- 2V654.V1 2 111151%
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facility operated by IRWD. OCWD owns the main transmission pipeline facility
and service line which serves USER upstream of CTTY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CM owns, operates and maintains all reclaimed water service meter
vault piping, by -pass line piping, service meter vault, pump station, service meter
and control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities ". USER owns and maintains the pipelines, backflow preventers,
warning signs, warning tags and all appurtenances downstream of CITY's
reclaimed water service meter vault, which facilities shall hereinafter be referred
to as "On -Site Facilities" and are more fully set forth on the drawings attached
hereto as Exhibit A -1 (to be attached within sixty (60) days of the execution of
this Agreement).
The point where USER's piping connects to the downstream end of CITY'S
reclaimed water service meter vault shall hereinafter be referred to as the "Point
of Connection". The Point of Connection will be in the Jamboree Road parkway
near USER's maintenance yard entrance approximately 1,300 feet northerly of
San Joaquin Hills Road, as shown on Exhibit A -2 attached hereto (to be attached
within sixty (60) days of the execution of this Agreement).
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CM by
USER. USER shall also own and maintain all devices relating to USER's on -site
potable water system including, but not limited to, drinking fountain covers,
backflow preventers and identification tags.
USER shall be responsible for all energy costs associated with the pump station
owned by CM but located on USER's property, and USER and CITY shall
execute a separate agreement in which USER will grant to CITY an easement or
NBI- M7654NI 3 mism6
license across USER's property to provide reasonable access to the pump station.
Such agreement will be attached hereto within sixty (60) days of the execution of
this Agreement as Exhibit C.
In addition, within sixty (60) days after the execution of this Agreement, USER
shall provide to CITY information with respect to USER's use of water,
fertilizers, water supplements and the costs thereof for the prior five (5) year
period. Within sixty (60) days of beginning to purchase Project Water from CITY
under this Agreement, USER shall provide CITY with the same information for
the period between (a) executing this Agreement and (b) the purchase of Project
Water from CITY.
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CTI'Y relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be referred
to as "Project Rules ", provided that CITY shall have provided USER with a copy
of such Project Rules and shall provide USER with any modifications or additions
thereto within ten (10) days of the promulgation of such modifications or
additions. In the event that CITY and /or OCWD or any other governmental
agency shall promulgate any rule or regulation that shall cause the total cost to
USER for the use of Project Water to exceed the total cost to USER if it had
used potable water instead of Project Water, USER may terminate this
Agreement upon thirty (30) days notice to C= and as set forth in Section 14 of
this Agreement. For purposes hereof, the total cost to USER shall include all
costs and expenses of any kind or nature directly or indirectly associated with the
use of Project Water including, without limitation, the rate charged for such use
NB1- 287654.V1 4 11115/96
pursuant_to this Agreement and the incremental costs incurred to comply with this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER; INSTANTANEOUS
MAXIMUM FLOW
CITY agrees to supply Project Water to USER and USER agrees to purchase
Project Water. The anticipated average annual Project Water usage at the Site is
two hundred ninety (290) acre -feet. Project Water flow demands at the SITE's
service shall not exceed an instantaneous maximum flow of two thousand two
hundred (2,200) gallons per minute. CITY's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project Facilities
by OCWD. In the event that the current use of the property discontinues or is
modified, USER may modify or terminate this Agreement, as applicable, subject
to the conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards or evidence of such hazards are found to exist, CITY reserves
the right and' has the authority to take action to insure that the situation be
remedied and to protect the public health, as is further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
4. QUALITY OF WATER TO BE PURCHASED BY USER;
CITY agrees that all Project Water delivered to USER from the Project Facilities
pursuant to this Agreement shall conform to (a) the current and future
requirements established by the California Regional Water Quality Control Board
- Santa Ana Region, State and local health departments, and Federal, State and
county agencies having jurisdiction to fix minimum standards for the quality of
NB1- 287654.V1 5 11/15/96
water with respect to USER's anticipated use, which Board, health departments
and agencies shall hereinafter be referred to as "Regulatory Agencies'; and (b)
such minimum standards set by Regulatory Agencies as will prevent the Project
Water from causing any damage to USER's property and all plants and vegetation
located thereon. Furthermore, CITY agrees that Project Water delivered to
USER pursuant to this Agreement shall conform to the requirements set forth in
Exhibit B attached hereto (to be attached within sixty (60) days of the execution
of this Agreement). If the Project Water fails to conform to the above
requirements, CITY covenants that CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place, and USER may terminate this
Agreement if such requirements are not met within thirty (30) days. CITY
understands and acknowledges that even a minor interruption in water service will
have a significant impact upon the SITE and may result in significant interference
and damage to the conduct of USER's business. Except as provided in the final
sentence of Section 3 above, any loss, cost, damage or expense resulting, directly
or indirectly, from the cessation or termination of service shall be borne by CITY.
In addition to the foregoing, CITY covenants that all Project Water delivered to
USER pursuant to this Agreement will not (x) emit any offensive odor, (y) cause
undesirable change to the environmental makeup of any of the lakes found on
USER's property, including any offensive change to the odor, algae level, color or
wildlife composition of such lakes, or (z) cause damage to USER's property or
grass, plants or other vegetation located thereon, which damage shall include
excessive salt buildup. In the event that USER shall decide, in USER's
reasonable judgment, that any of (x), (y), or (z) above exists, CITY and USER
agree to use the following procedure:
(1) USER shall notify CITY of the problem.
(2) CITY shall, within three (3) days of such notification,
investigate the problem.
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(3) If CIW agrees that a problem exists, CITY will attempt to
remedy the problem. If CITY is unable to remedy the
problem within thirty (30) days after CITY receives notice
from USER, CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place.
(4) If CITY does not agree that a problem exists, CITY will
notify USER of the same within three (3) days after CITY
receives notice from USER. CITY and USER will meet to
discuss the issue within seven (7) days of such notification
from CITY.
(5) If CITY and USER are still unable to agree whether a
problem exists, CITY and USER shall together select a
mediator. CITY and USER shall then present their views to
the mediator, and the mediator shall decide whether a
problem exists. CITY and USER agree to be bound by the
mediator's decision; however, CITY and /or USER may
pursue the matter through arbitration as provided in Section
18 hereof.
(6) If the mediator decides that a problem exists, the mediator
shall proscribe the course of action CITY must take to
remedy the problem. CITY must attempt immediately
thereafter to, remedy the problem in the manner proscribed.
If CITY is unable to remedy the problem within thirty (30)
days of receipt by CITY of the proscribed course of action
from the mediator, or within such longer period as deemed
reasonable by the mediator, CITY will terminate the flow of
Project Water to the SITE and provide potable water in its
place. .
(7) If the mediator decides that no problem exists, USER must
continue to accept Project Water as contemplated herein.
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The replacement of Project Water by potable water as provided above shall be on
a temporary basis only; once CITY and USER agree that the situation has been
remedied, CITY shall provide Project Water in the place of potable water on the
SITE. If there is disagreement as to whether the situation has been remedied,
CITY and USER shall follow the procedure outlined above to resolve such
dispute.
Project Water shall be delivered on a continuous basis at a pressure of not less
than ninety pounds per square inch (90 psi) for demands under thirteen hundred
gallons per minute (1,300 gpm), and not less than eighty pounds per square inch
(80 psi) for demands from thirteen hundred one gallons per minute (1,301 gpm)
to two thousand two hundred gallons per minute (2,200 gpm) at the Point of
Connection between the hours of 8:00 p.m. to 6:00 a.m. USER shall not exert a
demand for Project Water between the hours of 6:00 a.m. and 8:00 p.m. unless
USER'S staff is present to ensure that the public does not come into contact with
Project Water.
5. PRICE OF PROJECT WATER
CITY acknowledges the concerns of USER regarding (a) the potential need to
add or adjust fertilizers and /or water supplements to the Project Water in order
to maintain high quality fairway turf, and (b) the potential need to use additional
amounts of water in order to offset the increased amounts of nutrients in the
Project Water. CITY desires to comply with State law by only requiring USER to
use reclaimed water in its irrigation operations if CITY supplies Project Water to
USER at a cost less than or comparable to the cost of potable water.
Therefore, during the entire . term of this Agreement, the price to be paid by
USER for Project Water delivered by CITY shall not exceed the lower of (a)
NBI- 287654.V1 8 11/15/96
eighty percent (80 %) of the CM's retail rate for potable water, excluding any
surcharges that are based on usage of potable water, as such rate is 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 C='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 give
written notice to USER and. provide notice as prescribed in the City Municipal
Code of a public hearing on the resolution and price which shall apply following
adoption of said resolution. Failure to give notice shall not invalidate the action
of the City Council.
If, despite the reduced rate charged USER for Project Water in the preceding
paragraph, USER believes that unreimbursed incremental costs have been
incurred as a result of the use by USER of Project Water that would not have
been incurred if USER had used potable water, the following. steps shall be taken:
Within six (6) months after the end of this two (2) year period, and within six (6)
months after the end of each two (2) year period thereafter, USER shall submit
to CITY an itemized account of the costs expended during the previous two years
that were necessary to accommodate the use of Project Water on the SITE,
including, without limitation, costs of fertilizers, water supplements, and /or other
additives, costs of construction of any special systems, such as a gypsum- injection
system, and costs of excess Project Water that was needed to offset the increased
amounts of nutrients in the Project Water. CITY shall review this information
and, with the help of landscape and irrigation specialists, shall determine which
costs may be solely attributed to USER's use of Project Water as opposed to
potable water on the SITE. If USER disagrees as to CTI'Y's determination, CITY
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and USER shall select a mediator to settle the dispute as set forth in Section 4(5)
herein. CITY shall then make an adjustment to the rate for Project Water that
will (a) reimburse USER for the costs incurred during the previous two (2) years
that are attributed solely to the use of Project Water as opposed to the use of
potable water, and (b) compensate USER for the costs that are anticipated to be
incurred during the next two (2) years that are attributed solely to the use of
Project Water as opposed to potable water. The adjustment described in the
previous sentence shall be to the extent necessary for CITY to comply with State
law that requires CITY to provide Project Water to USER at a cost, including all
expenses associated therewith, that is less than or comparable to the cost of
potable water. USER and CITY may enact a formal process that implements the
intent of this paragraph.
6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY or a designated representative of CITY
shall periodically read the service meter and record usage of Project Water onto a
schedule.
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CITY's regular billing cycle. Said invoices shall be paid within nineteen
(19) days of the billing date. CITY retains the right to change billing cycles and
due dates as necessary upon sixty (60) days prior written notice to USER, so long
NBI- 2V654.v1 10 11/15196
as such change is consistent with formally adopted City-wide practices and
procedures and State law.
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for these uses.
9. COVENANTS, REPRESENTATIONS AND WARRANTIES
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's
irrigation needs with respect to the SPTE.
(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 requirements for Project Water during the term(s)
of this Agreement will be defined in Exhibit B attached hereto (to
be attached within sixty (60) days of the execution of this
Agreement).
(d) CITY will provide USER with all engineering support requested by
USER, without charge, including the assistance of CITY engineers
N331- 297654.V1 - 11 11115196
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and other staff, to assist in the review of USER's irrigation system
redesign for the purposes contemplated herein.
(e) At CTTY's cost, CITY will make presentations to USER, USER's
club members and related homeowners' associations with respect to
the Green Acres Project and Project Water.
(f) In the event that CITY is in breach or default under this
Agreement, at USER's election, CITY shall assign to USER all of
its rights and remedies under the Retailer Agreement.
CITY hereby represents and warrants as follows:
(a) USER may use potable water to irrigate putting greens, the
perimeter of selected fairways located adjacent to residences, and
elsewhere on the SITE as agreed to by USER and CITY and within
acceptable State Health Department standards.
(b) OCWD is not a party to any agreement between CITY and a user
of Project Water.
10. INDEMNIFICATION
CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or demands,
including (a) all consequential damages; (b) all damages to any natural resources,
and the costs of any required or necessary repair, clean up, response cost, or
detoxification of the SITE or any portion thereof, and the preparation and
implementation of any closure, remedial or other required plans; and (c) all costs
xai- 297654NI 12 nnsroc
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and expenses incurred in connection with clauses (a) and (b), including all
attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or
damage, including clauses (a), (b) and (c) above, shall collectively be referred to
herein as "Damages "), which arise directly or indirectly out of (x) the use by
USER of the Project Water as opposed to potable water as contemplated herein,
(y) the existence or alleged existence of any Hazardous Substances (as defined
below) in the Project Water, or (z) the failure to remove any Hazardous
Substances from the Project Water, unless such suit, claim or demand is caused
primarily by the gross negligence or willful misconduct of USER, its directors,
agents and employees, or the grossly negligent operation, maintenance or repair
by USER of On -Site Facilities required to be operated, maintained or repaired by
USER pursuant to this Agreement. The foregoing indemnity shall apply to any
residual contamination on, under or about the SITE, as well as claims of any
neighboring property owners or occupants, and to any contamination of any
property or natural resources, arising from the Project Water. Upon receiving
knowledge of any suit, claim or demand asserted by a third party that USER
believes is covered by this indemnity, USER shall give CITY notice of the matter
and an opportunity to defend it, at CITY's cost and expense, with legal counsel
satisfactory to USER. USER may also require CITY to so defend the matter.
CITY will pay all fees or penalties imposed by any Regulatory Agency or any
other governmental authority for any violation of any code, regulation or law with
respect to the transportation, use or chemical composition of the Project Water.
The obligations of CITY under this Section 10 shall survive the expiration or
termination of this Agreement.
CITY acknowledges that excess water from USER irrigation operations and from
takes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water will
drain into the Upper Newport Bay as well. CITY agrees to indemnify, defend,
save and hold harmless USER, its directors, agents and employees from and
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against any and all Damages which arise directly or indirectly out of such drainage
of Project Water into the Upper Newport Bay as well as any modification or
termination of USER'S right to allow its excess water to drain into the Upper
Newport Bay when the modification or termination is required because of
USER'S use of Project Water as contemplated herein.
As used herein, "Hazardous Substances" shall mean (a) any chemical, compound,
material, mixture or substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Law (as defined below) as a
"hazardous substance ", "hazardous material', "hazardous waste ", "contaminant" or
any other formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity" or "TCLP
toxicity"; and (b) any other chemical, material, or substance that, because of its
quantity, concentration, or physical or chemical characteristics, exposure to which
is limited or regulated for health and safety reasons by any governmental
authority, or which poses a significant present or potential hazard to human health
and safety or to the environment if released into the workplace or the
environment. "Environmental Law" shall mean shall mean any and all present
and future Federal, state and local laws (whether under common law, statute or
otherwise), ordinances, regulations, permits, guidance documents, policies, and any
other requirements of governmental authorities relating to health, safety, the
environment or to any Hazardous Substances.
11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's reasonable cooperation, any and all applications and to
NBl- M654.vi 14 nnsr%
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undertake such proceedings as may be necessary to enable OCWD, CITY and
USER to carry out the undertaking described herein, and to pursue such
applications and proceedings in good faith and with due diligence, including any
application required to be issued to OCWD by Regulatory Agencies.. USER
understands and agrees that USER must comply with the regulations set forth in
permits if such permits apply to USER, provided that such compliance by USER
shall not materially increase the cost of Project Water or unreasonably interfere
with USER's golf course and related operations.
12. INTENTIONALLY DELETED
13. CONDITIONS PRECEDENT
(a) This Agreement is conditioned upon (i) USER and OCWD
executing by December 2, 1996 that certain Agreement between
Orange County Water District and Big Canyon Country Club
Regarding Design and Construction of Reclaimed Water Retrofit at
Golf Course Facility; and (ii) USER and CITY executing by
December 2, 1996 that certain Loan Agreement for the Design,
Construction and Retrofit of Big Canyon Country Club's Irrigation
System.
(b) This Agreement is conditioned upon OCWD's completing and
making operational the Green Acres Project by July 1, 1998,
including the following: (a) the transmission pipeline is extended to
the Site; (b) OCWD makes Project Water available for sale; and
(c) all necessary permits, certificates and approvals are issued by all
Regulatory Agencies having jurisdiction over the construction and
operation of water reclamation facilities and over the production,
NBI- 287654.v1 15 111151%
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f
distribution, sale and use of Project Water. This Agreement is
further conditioned upon (y) OCWD's acquiring by July 1, 1998,
acceptable right -of -way access from the Project Facilities to the
SITE for transportation pipeline purposes, and (z) OCWD and
CITY gaining by July 1, 1998, the approval by all federal, state and
local agencies having regulatory jurisdiction or grant- funding
responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given
time limits, USER may cancel this Agreement.
(c) Within three (3) years from the date the conditions specified in
items (a), (b), (c), (y) and (z) above have been satisfied, the
redesign of USER's irrigation system to accommodate Project Water
shall have been completed and USER shall have begun purchasing
Project Water from CITY as provided herein.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy-
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty-four (24) hours advance notice when resumption of the delivery of Project
Water to USER's SITE is expected. In the event CITY is unable to deliver
Project Water to USER or defaults under this Agreement, CITY must provide
USER with potable water at the potable water rate or reclaimed water at the
Project Water rate, subject to the right of CITY to determine allocation of all
water, both Project Water and potable, in the event of emergencies. If USER
terminates this Agreement as authorized under the terms of this Agreement,
CITY must contemporaneously provide USER with potable water in the place of
NBl- 287654. V 1 16 11/15/96
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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 there is a cessation in service or this Agreement is canceled or
terminated for any reason (other than the expiration of the term pursuant to
Section 16 below), as well as converting back to Project Water if service is to be
restored pursuant to the terms of this Agreement.
15. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The initial term of this Agreement shall be ten (10) years from the day and year
first above written. USER shall have the option to extend said initial term for
two (2) additional ten (10) year terms, provided that USER gives CITY written
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.
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17. ASSIGNMENT
11
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without the written consent of CITY, which consent shall not be
unreasonably withheld.
18. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the
written request of any party be arbitrated pursuant to the applicable
rules of the American Arbitration Association. The arbitration shall
occur in the State of California. Judgment upon any award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction. The Federal Arbitration Act shall apply to the
construction and interpretation of this arbitration agreement.
(b) A single arbitrator shall have the power to render a maximum
award of one hundred thousand dollars ($100,000). When any party
files a claim in excess of this amount, the arbitration decision shall
be made by the majority vote of three (3) arbitrators. No arbitrator
shall have the power to restrain any act of any party.
(c) No provision of subparagraph (a) shall limit the right of any party to
exercise self -help remedies or to obtain any provisional or ancillary
Nsl- 2876U.v1 18 11/15/%
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
lie applicable in any arbitration proceeding.
19. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
CITY: City, of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
or such other address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete forty-eight (48) hours
after depositing the same in. a United States mail depository.
ND1- W654.v1 19 11115196
! •
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.
NBI- 287654.vi 20 11/i5/96
i 1 •
IN WITNESS WHEREOF, the parties herein have executed this
Agreement as of the date set forth above.
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH,
a municipal corporation
/Robert Burnham, Esq.
City Attorney
BIG CANYON COUNTRY CLUB,
a private corporation
4 siamiltdent
ATTEST:
La onne Harkless
City Clerk
NB1- 287654.V1 21 11/15/96
FO 'CA r,S6 9T :VT G66T- TT -8dti
Z0'd 7di01
Dveama
PHILIP L. ANTHONY
WE$ BANNISTER
KATHRYN L. BARR
JOHN V. FONLEY
DANIEL E. WISE`
LAWRENCE P. KRAEMER JR.
GEORGE OSBORNE
LANGDON W. OWEN
IRV PICKLER
ARNT G.'BUD' OUIST
March 28, 1997
51NG�_af�3�^
ORANGE COUNTY WATER DISTRICT
Nancy L. Shackleton
C'Melveny & Myers LLP
610 Newport Center Drive
Suite 1700
Newport Beach, CA 92660 -6429
offkats .
WES BANNISTER
Prasmot
RM Vke E. GP M
ARM G. 'BUD' OUI$T
SeMnd Yke PMda t
WLL,UAM A. MILLS JR.
en IMeneget
G& WK1
Re. Second Amended and Restated Agreement Between Big Canyon
County Club and City of Newport Beach Regarding Green Acres
Water Project
Dear Nancy:
As we discussed on March 28, 1997, the Orange County Water District never
executed the Second Amended and Restated Agreement because it had received the
Third Amended and Restated Agreement before the Second Amended and Restated
Agreement went to its Board. The'Third Amended and Restated Agreement was
submitted to the Board and signed and the Second Amended and Restated Agreement
was not because it.appeared to bQ 4,` ng.further interest to the parties.
If you need anything further from Us, please advise.
Very truly yours,
Clark F. Ide
General Counsel
CFl /mak
cc: Chuck Steinbergs
Barbara White
c,4&=urr&r Abkpmy*n.pp
P.O. BOX 8300, FOUNTAIN VALLEY, CA 92728.8300 . 10500 ELLIS AVENUE, FOUNTAIN VALLEY, CA 92708
TELEPHONE (714) 37a -3200 FAX (714) 378.9373
20'd #020£7V96 # *6665b£860 01 EN dJJ SZIBAW 8 ANEIn-1314.0 W08A £T:£T L66T- TT -bdtl
AMENDED AND RESTATED AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT FOR DELIVERY AND SALE
OF RECLAIMED WATER TO BIG CANYON COUNTRY CLUB
THIS AMENDED AND RESTATED AGREEMENT is made and entered
into as of this 30th day of September; 1996 by. and between the City of Newport Beach, a
Municipal Corporation, hereinafter referred to as "CITY", and the Big Canyon Country
Club, a private, non -profit mutual benefit corporation, hereinafter referred to as "USER".
RECITALS
A. With the exception of certain limited areas served by the Irvine
Ranch Water District ( "IRWD "), CITY is the exclusive retail water purveyor within
C IY's boundaries providing water for residential, industrial, commercial, public agency,
agricultural and other uses. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced from
the Orange County groundwater basin, which basin is managed by the Orange County
Water District ( "OCWD ").
B. USER is a private corporation within the jurisdictional and service
boundaries of CITY, and currently purchases potable water from CITY for its own use at
Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. CITY has agreed to buy reclaimed water from OCWD and resell
such reclaimed water pursuant to the terms and conditions specified in that certain
agreement entitled "Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water" dated as
of January 16, 1991, and as it may be subsequently amended, hereinafter referred to as
"Retailer Agreement ". City executed the Retailer Agreement for the purpose of seeking
tasi- sazsai.vz// 1 �auivc _..—
OCWDDOC• J� �(D I I -173 FUGIAR /OCWDDOC. STAR NO.
to provide its present and future residents with a supplemental source of water to meet
their needs and to assist in the statewide objective of conserving and utilizing to the
maximum degree possible the water of the People of the State of California, which water
shall be recovered from the operation known as the "Green Acres Project" for all
possible beneficial uses.
D. The Green Acres Project is being planned for extension into CITY's
service area for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the IRWD, such wastewater having
been treated by OCWD or IRWD to standards established by the State Health
Department and transported and sold by OCWD as "Project Water' to CITY to be
resold to Project Water customers.
E. USER desires to purchase Project Water from CITY for allowable,
suitable nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities (hereinafter referred to as "SITE "), in lieu of potable water currently
purchased from CITY, and CITY is willing to sell Project Water to USER.
AGREEMENT
NOW THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part. of the
Green Acres Project that will convey Project Water to various locations within
CTTY 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
NB1- 282581.V2 2 10/15/96
and service line which serves USER upstream of CTTY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as 'Project
Facilities ". CITY owns, operates and maintains all reclaimed water service meter
vault piping, by -pass line piping, service meter vault, pump station, service meter
and control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities ". USER owns and maintains the pipelines, backflow preventers,
warning signs, warning tags and all appurtenances downstream of CTTY's
reclaimed water service meter vault,. which facilities shall hereinafter be referred
to as "On -Site Facilities" and are more fully set forth on the drawings attached
hereto as Exhibit A -1 (to be attached within sixty (60) days of the execution of
this Agreement).
The point where USER's piping connects to the downstream end of CITY's
reclaimed water service meter vault shall hereinafter be referred to as the "Point
of Connection ". The Point of Connection will be in the Jamboree Road parkway
near USER's maintenance yard entrance approximately 1,300 feet northerly of
San Joaquin Hills Road, as shown on Exhibit A -2 attached hereto (to be attached
within sixty (60) days of the execution of this Agreement).
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CITY by
USER. USER shall also own and maintain all devices relating to USER's on -site
potable water system including, but not limited to, drinking fountain covers,
backflow preventers and identification tags.
USER shall be responsible for all energy costs associated with.the pump station
owned by CITY but located on USER's property, and USER and CITY shall
execute a separate agreement in which USER will grant to CITY an easement or
license across USER's property to provide reasonable access to the pump station.
N1B1- 2M8I.v2 3 10115M ._.
Such agreement will be attached hereto within sixty (60) days of the execution of
this Agreement as Exhibit C.
In addition, within sixty (60) days after the execution of this Agreement, USER
shall provide to CITY information with respect to USEws use of water,
fertilizers, water supplements and the costs thereof for the prior five (5) year
period. Within sixty (60) days of beginning to purchase Project Water from CITY
under this Agreement, USER shall provide CITY with the same information for
the period between (a) executing this Agreement and (b) the purchase of Project
Water from CITY.
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and.use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be referred
to as 'Project Rules", provided that CITY shall have provided USER with a copy
of such Project Rules and shall provide USER with any modifications or additions
thereto within ten (10) days of the promulgation of such modifications or
additions. In the event that CITY and /or OCWD or any other governmental
agency shall promulgate any rule or regulation that shall cause the total cost to
USER for the use of Project Water to exceed the total cost to USER if it had
used potable water instead of Project Water, USER may terminate this
Agreement upon thirty (30) days notice to CITY and as set forth in Section 14 of
this Agreement. For purposes hereof, the total cost to USER shall include all
costs and expenses of any kind or nature directly or indirectly associated with the
use of Project Water including, without limitation, the rate charged for such use
NBI- 282581.v2 4 tonsros
pursuant to this Agreement and the incremental costs incurred to comply with this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER; INSTANTANEOUS
MAXIMUM FLOW
CITY agrees to supply Project Water to USER and USER agrees to purchase
Project Water. The anticipated average annual Project Water usage at the Site is
two hundred ninety (290) acre -feet. Project Water flow demands at the SITE's
service shall not exceed an instantaneous maximum flow of two thousand two
hundred (2,200) gallons per minute. CITY's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project Facilities
by OCWD. In the event that the current use of the property discontinues or is
modified, USER may modify or terminate this Agreement, as applicable, subject
to the conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards or evidence of such hazards are found to exist, CITY reserves
the right and has the authority to take action to insure that the situation be
remedied and to protect the public health, as is further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SI'Z'E.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees that all Project Water delivered to USER from the Project Facilities
pursuant to this Agreement shall conform to (a) the current and future
requirements established by the California Regional Water Quality Control Board
- Santa Ana Region, State and local health departments, and Federal, State and
county agencies having jurisdiction to fix minimum standards for the quality of
arse- 292581.v2 5 10115ro6
water with respect to USER's anticipated use, which Board, health departments
and agencies shall hereinafter be referred to as "Regulatory Agencies'; and (b)
such. minimum standards set by Regulatory Agencies as will prevent the Project
Water from causing any damage to USER's property and all plants and vegetation
located thereon. Furthermore, CITY agrees that Project Water delivered to
USER pursuant to this Agreement shall conform to the requirements set forth in
Exhibit B attached hereto (to be attached within sixty (60) days of the execution
of this Agreement). If the Project Water fails to conform to the above
requirements, CITY covenants that CITY will terminate the flow of Project Water
to the STI'E and provide potable water in its place, and USER may terminate this
Agreement if such requirements are not met within thirty (30) days. CITY
understands and acknowledges that even a minor interruption in water service will
have a significant impact upon the SITE and may result in significant interference
and damage to the conduct of USER's business. Except as provided in the final .
sentence of Section 3 above, any loss, cost; damage or expense resulting, directly
or indirectly, from the cessation or termination of service shall be borne by CITY.
In addition to the foregoing, CTI'Y covenants that all Project Water delivered to
USER pursuant to this Agreement will not (x) emit any offensive odor, (y) cause
undesirable change to the environmental makeup of any of the lakes found on
USER's property, including any offensive change to the odor, algae level, color or
wildlife composition of such lakes, or (z) cause damage to USER's property or
grass, plants or other vegetation located thereon, which damage shall include
excessive salt buildup. In the event that USER shall decide, in USEWs
reasonable judgment, that any of (x), (y), or (z) above exists, CITY and USER
agree to use the following procedure:
(1) USER shall notify CITY of the problem.
(2) CITY shall, within three (3) days of such notification,
investigate the problem.
xa1.2M8I.v2 6 10115196
(3) If CITY agrees that a problem exists, CITY will attempt to
remedy the problem. If CITY is unable to remedy the
problem within thirty (30) days after CITY receives notice
from USER, CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place.
(4) If CITY does not agree that a problem exists, CITY will
notify USER of the same within three (3) days after CITY
receives notice from USER CITY and USER will meet to
discuss the issue within seven (7) days of such notification
from CITY.
(5) If CITY and USER are still unable to agree whether a
problem exists, CITY and USER shall together select a
mediator. CITY and USER shall then present their views to
the mediator, and the mediator shall decide whether a
problem exists. CITY and USER agree to be bound by the
mediator's decision; however, CITY and /or USER may
pursue the matter through arbitration as provided in Section
18 hereof.
(6) If the mediator decides that a problem exists, the mediator
shall proscribe the course of action CITY must take to
remedy the problem. CITY must attempt immediately
thereafter to remedy the problem in the manner proscribed.
If CITY is unable to remedy the problem within thirty (30)
days of receipt by CITY of the proscribed course of action
from the mediator, or within such longer period as deemed
reasonable by the mediator, CITY will terminate the flow of
Project Water to the STTE and provide potable water in its
place.
(7) If the mediator decides that no problem exists, USER must
continue to accept Project Water as contemplated herein:
NMI- 282581.V2 7. 10/15/96
The replacement of Project Water by potable water as provided above shall be on
a temporary basis only; once CITY and USER agree that the situation has been
remedied, CITY.shall provide Project Water in the place of potable water on the
SITE. If there is disagreement as to whether the situation has been remedied,
CITY and USER shall follow the procedure outlined above to resolve such
dispute.
Project Water shall be delivered on a continuous basis at a pressure of not less
than ninety pounds per square inch (90 psi) for demands under thirteen hundred
gallons per minute (1,300 gpm), and not less than eighty pounds per square inch
(80 psi) for demands from thirteen hundred one gallons per minute (1,301 gpm)
to two thousand two hundred gallons per minute (2,200 gpm) at the Point of
Connection between the hours of 8:00 p.m. to 6:00 am. USER shall not exert a
demand for Project Water between the hours of 6:00 a.m. and 8:00 p.m. unless
USER's staff is present to ensure that the public does not come into contact with
Project Water.
5. PRICE OF PROJECT WATER
CITY acknowledges the concerns of USER regarding (a) the potential need to
add or adjust fertilizers and /or water supplements to the Project Water in order
to maintain high quality fairway turf, and (b) the potential need to use additional
amounts of water in order to offset the increased amounts of nutrients in the
Project Water. CITY desires to comply with State law by only requiring USER to
use reclaimed water in its irrigation operations if CITY supplies Project Water to
USER at a cost less than or comparable to the cost of potable water.
Therefore, during the entire term of this Agreement, the price to be paid by
USER for Project Water delivered by CITY shall not exceed the lower of (a)
eighty percent (809o) of the CITY's retail rate for potable water, excluding any
NB1- 282581.V2 8 10/15/96
,
surcharges that are based on usage of potable water, as such rate is 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 give
written notice to USER and provide notice as prescribed in the City Municipal
Code of a public hearing on the resolution and price which shall apply following
adoption of said resolution. Failure to give notice shall not invalidate the action
of the City Council.
If, despite the reduced rate charged USER for Project Water in the preceding
Paragraph, USER believes that unreimbursed incremental costs have been
incurred as a result of the use by USER of Project Water that would not have
been incurred if USER had used potable water, the following steps shall be taken:
Within six (6) months after the end of this two (2) year period, and within six (6)
months after the end of each two (2) year period thereafter, USER. shall submit
to CITY an itemized account of the costs expended during the previous two years
that were necessary to accommodate the use of Project Water on the SITE,
including, without limitation, costs of fertilizers, water supplements, and /or other
additives, costs of construction of any special systems, such as a gypsum- injection
system and costs of excess Project Water that was needed. to offset the increased
amounts of nutrients in the Project Water. CITY shall review this information
and, with the help of landscape and irrigation specialists, shall determine which
costs may be solely attributed to USER's use of Project Water as opposed to
potable water on the SITE. If USER disagrees as to CITY's determination, CITY
and USER shall select a mediator to settle the dispute as set forth in Section 4(5)
rest- 292581.v2 9 10 /15M
0 0
herein. CITY shall then make an adjustment to the rate for Project Water that
will (a) reimburse USER for the costs incurred during the previous two (2) years
that are attributed solely to the use of Project Water as opposed to the use of
potable water, and (b) compensate USER for the costs that are anticipated to be
incurred during the next two (2) years that are attributed solely to the use of
Project Water as opposed to potable water. The adjustment described in the
previous sentence shall be to the extent necessary for CITY to comply with State
law that requires CITY to provide Project Water to USER at a cost, including all
expenses associated therewith, that is less than or comparable to the cost of
potable water. USER and CITY may enact a formal process that implements the
intent of this paragraph.
6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY or a designated representative of CITY
shall periodically read the service meter and record usage of Project Water onto a
schedule.
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CIIY's regular billing cycle. Said invoices shall be paid within nineteen
(19) days of the billing date. CITY retains the right to change billing. cycles and
due dates as necessary upon sixty (60) days prior written notice to USER, so long
as such change is .consistent with formally adopted City-wide practices and
procedures and State law.
NBl- 292581.v2 10 1 10/15/96
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for these uses.
9. COVENANTS, REPRESENTATIONS AND WARRANTIES
CITY hereby covenants as follows:
(a) There will be sufficient. Project Water to meet all of USER's
irrigation needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project
Facilities and City Facilities have complied and will comply with all
regulations promulgated by all Agencies and all other
applicable laws.
(c) The water quality requirements for Project Water during the term(s)
of this Agreement will be defined in Exhibit B attached hereto (to
be attached within sixty (60) days of the execution of this
Agreement).
(d) CITY will provide USER with all engineering support requested by
USER, without charge, including the assistance of CITY engineers
and other staff, to assist in the review of USER's irrigation system
redesign for the purposes contemplated herein.
NEE- 282581.v2 11 10/15196
(e) At CITY's cost, CITY will make presentations to USER, USER's
club members and related homeowners' associations with respect to
the Green Acres Project and Project Water.
(f) In the event that CITY is in breach or default under this
Agreement, at USER's election, CITY shall assign to USER all of
its rights and remedies under the Retailer Agreement.
CM hereby represents and warrants as follows:
(a) USER may use potable water to irrigate putting greens, the
perimeter of selected fairways located adjacent to residences, and
elsewhere on the SITE as agreed to by USER and CITY and within
acceptable State Health Department standards.
(b) OCWD is not a party to any agreement between CITY and a user
of Project Water.
10. INDEMNIFICATION
CM agrees to protect, indemnify, defend, save and hold harmless-USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or demands,
including (a) all consequential damages; (b) all damages to any natural resources,
and the costs of any required or necessary repair, clean up, response cost, or,
detoxification of the SITE or any portion thereof, and the preparation and
implementation of any. closure, remedial or other required plans; and (c) all costs
and expenses incurred in connection with clauses (a) and (b), including all
attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or
damage, including clauses (a), (b) and (c) above, shall collectively be referred to
NBI- 292.58Lv2 12 iauro6
herein as "Damages "), which arise directly or indirectly out of (x) the use by
USER of the Project Water as opposed to potable water as contemplated herein,
(y) the existence or alleged existence of any Hazardous Substances (as defined
below) in the Project Water, or (z) the failure to remove any Hazardous
Substances from the Project Water, unless such suit, claim or demand is caused
primarily by the gross negligence or willful misconduct of USER, its directors,
agents and employees, or the grossly negligent operation, maintenance or repair
by USER of On -Site Facilities required to be operated; maintained or repaired by
USER pursuant to this Agreement. The foregoing indemnity shall apply to any
residual contamination on, under or about the SITE, as well as claims of any
neighboring property owners or occupants, and to any contamination of any
property or natural resources, arising from the Project Water. Upon receiving
knowledge of any suit, claim or demand asserted by a third party that USER
believes is covered by this indemnity, USER shall give CITY notice of the matter
and an opportunity to defend it, at CITY's cost and expense, with legal counsel
satisfactory to USER. USER may also require CITY to so defend the matter.
CITY will pay all fees or penalties imposed by any Regulatory Agency or any
other governmental authority for any violation of any code, regulation or law with
respect to the transportation, use or chemical composition of the Project Water.
The obligations of CITY under this Section 10 shall survive the expiration or
termination of this Agreement.
CITY acknowledges that excess water from USER irrigation operations and from
lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water will
drain into the Upper Newport Bay as well. CITY agrees to indemnify, defend,
save and hold harmless USER, its directors, agents and employees from and
against any and all Damages which arise directly or indirectly out of such drainage
of Project Water into the Upper Newport Bay as well as any modification or
termination of USER's right to allow its excess water to drain into the Upper
NBl•282581.V2 13 10115196
Newport Bay when the modification or termination is required because of
USER's use of Project Water as contemplated herein.
As used herein, "Hazardous Substances" shall mean (a) any chemical, compound,
material, mixture or substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Law (as defined below) as a
"hazardous substance ", "hazardous material", "hazardous waste ", "contaminant" or
any other formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity" or "TCLP
toxicity"; and (b) any other chemical, material, or substance that, because of its
quantity, concentration, or physical or chemical characteristics, exposure to which
is limited or regulated for health and safety reasons by any governmental
authority, or which poses a significant present or potential hazard to human health
and safety or to the environment if released into the workplace or the
environment. "Environmental Law' shall mean shall mean any and all present
and future Federal, state and local laws (whether under common law, statute or
otherwise), ordinances, regulations, permits, guidance documents, policies, and any
other requirements of governmental authorities relating to health, safety, the
environment or to any Hazardous Substances.
11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project,Water for landscape irrigation. All costs of
obtaining such permits shall be borne by .CITY. CITY agrees to file in USER's
name, with USER's reasonable cooperation, any and all applications and to
undertake such proceedings as may be necessary to enable OCWD, CITY and
USER to carry out the undertaking described herein, and to pursue such
applications and proceedings in good faith and with due diligence, including any
NBl- 282581.V2 14 30715/96
application required to be issued to OCWD by Regulatory Agencies. USER
understands and agrees that USER must comply with the regulations set forth in
permits if such permits apply to USER, provided that such compliance by USER
shall not materially increase the cost of Project Water or unreasonably interfere
with USER's golf course and related operations.
12. INTENTIONALLY DELETED
13. CONDITIONS PRECEDENT
(a) This Agreement is conditioned upon (i) USER and OCWD
executing by November 15, 1996 that certain Agreement between
Orange County Water District and Big Canyon Country Club
Regarding. Design and Construction of Reclaimed Water Retrofit at
Golf Course Facility; and (ii) USER and CITY executing by
November 15, 1996 that certain Loan Agreement for-the Design,
Construction and Retrofit of Big Canyon Country Club's Irrigation
System.
(b) This Agreement is conditioned upon OCWD's completing and
making operational the Green Acres Project by July 1, 1998,
including the following: (a) the transmission pipeline is extended to
the Site; (b) OCWD makes Project Water available for sale; and
(c) all necessary permits, certificates and approvals are issued by all
Regulatory Agencies having jurisdiction over the construction and
operation of water reclamation facilities and over the production,
distribution, sale and use of Project Water. This Agreement is
further conditioned upon (y) OCWD's acquiring by July 1, 1998,
acceptable right -of -way access from the Project Facilities to the
NB1- 2M81.V2 15 101151%
SITE for transportation pipeline purposes, and (z) OCWD and
CITY gaining by July 1, 1998, the approval by all federal, state and
local agencies having regulatory jurisdiction or grant- funding
responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given
time limits, USER may cancel this Agreement.
(c) Within three (3) years from the date the conditions specified in
items (a), (b), (c), (y) and (z) above have been satisfied, the
redesign of USER's irrigation system to accommodate Project Water
shall have been completed and USER shall have begun purchasing
Project Water from CITY as provided herein.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy -
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty -four (24) hours advance notice when resumption of the delivery of Project
Water to USER's SITE is expected. In the event CITY is unable to deliver
Project. Water to USER or defaults under this Agreement, CITY must provide
USER with potable water at the potable water rate or reclaimed water at the
Project Water rate, subject to the right of CITY to determine allocation of all
water, both Project Water and potable, in the event of emergencies. If USER
terminates this Agreement as authorized under the terms of this Agreement,
CM must contemporaneously provide USER with potable water in the place of
Project Water. Furthermore, in the event that OCWD ceases producing and
distributing Project Water or in the event that the treatment criteria imposed by
any Regulatory Agencies exceeds those existing as of the date of this Agreement,
Na1- 2M81.v2 - 16 ionsros .
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 there is a cessation in service or this Agreement is canceled or
terminated for any reason (other than the expiration of the term pursuant to
Section 16 below), as well as converting back to Project Water if service is to be
restored pursuant to the terms of this Agreement.
15. LUMHATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The initial term of this Agreement shall be ten (10) years from the day and year
first above written. USER shall have the option to extend said initial term for
two (2) additional ten (10) year terms, provided that USER gives CITY written
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,
NB1- 282581.V2 17 10/15/96 '- -
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without the written consent of CITY, which consent shall not be
unreasonably withheld.
18. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the
written request of any party be arbitrated pursuant to the applicable
rules of the American Arbitration Association. The arbitration shall
occur in the State of California Judgment upon any award
rendered by the arbitrator(s) may be entered .in. any court having
jurisdiction. The Federal Arbitration Act shall apply to the
construction and interpretation of this arbitration agreement.
(b) A single arbitrator shall have the power to render a maximum
award of one hundred thousand dollars ($100,000). When any party
files a claim in excess of this amount, the arbitration decision shall
be made by the majority vote of three (3) arbitrators. No arbitrator
shall have the power to restrain any act of any party.
(c) No provision of subparagraph (a) shall limit the right of any party to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including, but not limited to, injunctive relief) from a
court of competent jurisdiction. The institution and maintenance of
any remedy permitted above shall not constitute a waiver of the .
rights to submit any controversy or claim to arbitration. The statute
of limitations, estoppel, waiver, laches, and similar doctrines which
NBl- 262SKM 18 101151% __
would otherwise be applicable in an action brought by a party shall
be applicable in any arbitration proceeding.
19. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
or such other address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete. forty -eight (48) hours
after depositing the same in a United States mail depository.
20. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CTTY and USER and their respective successors.and assigns.
NBl- 2ffis81.V2 19 10/15/96
0
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 munipipal corporation
City Attorney
BIG CANYON COUNTRY CLUB,
a private corporation
0
ATTEST:
LaVonne Harkless
City Clerk
xai- zausi.va 20 10/1516
ACKNOWLEDGEMENT 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 WA R TO BIG CANYON COUNTRY CLUB" entered into this
3 O day of , 1996, by and between the CITY of
Newport Beach, as the Rdiailer -of Project Water, and Big Canyon Country Club, as the
USER of Project Water, for delivery and sale of Project Water to Big Canyon Country
Club, One Big Canyon Drive, Newport Beach, CA, for landscape irrigation.
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
C44 A0
Clark Ide, Esq. George Osborne
General Counsel President
General Manager
NBI- 2e2591.v2 21 iavusv
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,10 day of dec,
1996 by and between the City of Newport Beach, a Municipal Corporation, hereinafter
referred to as "CITY", and the Big Canyon Country Club, a private, non -profit mutual
benefit corporation, hereinafter referred to as "USER".
RECITALS
A. With the exception of certain limited areas served by the Irvine
Ranch Water District ( "IRWD "), CITY is the exclusive retail water purveyor within
CITY's boundaries providing water for residential, industrial, commercial, public agency,
agricultural and other uses. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced from
the Orange County groundwater basin, which basin is managed by the Orange County
Water District ("OCWD ").
B. USER is a private corporation within the jurisdictional and service
boundaries of CITY, and currently purchases potable water from CITY for its own use at
Big Canyon Country Club, One Big Canyon Drive, Newport Beach, California.
C. CITY has agreed to buy reclaimed water from OCWD and resell
such reclaimed water pursuant to the terms and conditions specified in that certain
agreement entitled "Agreement Between Orange County Water District and City of
Newport Beach Regarding Distribution and Sale of Green Acres Project Water" dated as
of January 16, 1991, and as it may be subsequently amended, hereinafter referred to as
"Retailer Agreement ". City executed the Retailer Agreement for the purpose of seeking
NBI- 275893.V]3 1 09/271%
OCWD DOC. A-f W FILE W /OCWD Doc. g� ' /_/ STAR NO
•
to provide its present and future residents with a supplemental source of water to meet
their needs and to assist in the statewide objective of conserving and utilizing to the
maximum degree possible the water of the People of the State of California, which water
shall be recovered from the operation known as the "Green Acres Project" for all
possible beneficial uses.
D. The Green Acres Project is being planned for extension into CITY's
service area for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the IRWD, such wastewater having
been treated by OCWD or IRWD to standards established by the State Health
Department and transported and sold by OCWD as "Project Water" to CITY to be
resold to Project Water customers.
E. USER desires to purchase Project Water from CITY for allowable,
suitable nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities (hereinafter referred to as "SITE "), in lieu of potable water currently
purchased from CITY, and CITY is willing to sell Project Water to USER.
AGREEMENT
NOW THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the
Green Acres Project that will convey Project Water to various locations within
CITY boundaries, including the SITE. All Project Water will originate from
either the OCWD Green Acres Project Water Treatment Facility or a similar
facility operated by IRWD. OCWD owns the main transmission pipeline facility
NB1- 275895.V13 2 09/27/96
and service line which serves USER upstream of CTTY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CTTY owns, operates and maintains all reclaimed water service meter
vault piping, by -pass line piping, service meter vault, pump station, service meter
and control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities ". USER owns and maintains the pipelines, backflow preventers,
warning signs, warning tags and all appurtenances downstream of CITY's
reclaimed water service meter vault, which facilities shall hereinafter be referred
to as "On -Site Facilities" and are more fully set forth on the drawings attached
hereto as Exhibit A -1 (to be attached within sixty (60) days of the execution of
this Agreement).
The point where USER's piping connects to the downstream end of CTTY's
reclaimed water service meter vault shall hereinafter be referred to as the "Point
of Connection ". The Point of Connection will be in the Jamboree Road parkway
near USER's maintenance yard entrance approximately 1,300 feet northerly of
San Joaquin Hills Road, as shown on Exhibit A -2 attached hereto (to be attached
within sixty (60) days of the execution of this Agreement).
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CITY by
USER. USER shall also own and maintain all devices relating to USER's on -site
potable water system including, but not limited to, drinldng fountain covers,
backflow preventers and identification tags.
USER shall be responsible for all energy costs associated with the pump station
owned by CITY but located on USER's property, and USER and CITY shall
execute a separate agreement in which USER will grant to CITY an easement or
license across USER's property to provide reasonable access to the pump station.
NB1- 275895.V13 3 09/27/96
! •
Such agreement will be attached hereto within sixty (60) days of the execution of
this Agreement as Exhibit C.
In addition, within sixty (60) days after the execution of this Agreement, USER
shall provide to CITY information with respect to USER's use of water, .
fertilizers, water supplements and the costs thereof for the prior five (5) year
period. Within sixty (60) days of beginning to purchase Project Water from CITY
under this Agreement, USER shall provide CITY with the same information for
the period between (a) executing this Agreement..and (b) the purchase of Project
Water from CM.
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be referred
to as "Project Rules ", provided that CITY shall have provided USER with a copy
of such Project Rules and shall provide USER with any modifications or additions
thereto within ten (10) days of the promulgation of such modifications or
additions. In the event that CITY and /or OCWD or any other governmental
agency shall promulgate any rule .or regulation that shall 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) days
notice to CITY and as set forth in Section 14 of this Agreement.
NB1- 275895.V13 4 09/27/96
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3. QUANTITY OF WATER TO BE PURCHASED BY USER; INSTANTANEOUS
MAXIMUM FLOW
CITY agrees to supply Project Water to USER and USER agrees to purchase
Project Water. The anticipated average annual Project Water usage at the Site is
two hundred ninety (290) acre -feet. Project Water flow demands at the SITE'S
service shall not exceed an instantaneous maximum flow of two thousand two
hundred (2,200) gallons per minute. CITY's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project Facilities
by OCWD. In the event that the current use of the property discontinues or is
modified, USER may modify or terminate this Agreement, as applicable, subject
to the conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards or evidence of such hazards are found to exist, CITY reserves
the right and has the authority to take action to insure that the situation be
remedied and to protect the public health, as is further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees that all Project Water delivered to USER from the Project Facilities
pursuant to this Agreement shall conform to (a) the current and future
requirements established by the California Regional Water Quality Control Board
- Santa Ana Region, State and local health departments, and Federal, State and
county agencies having jurisdiction to fix minimum standards for the quality of
water with respect to USER's anticipated use, which Board, health departments
and agencies shall hereinafter be referred to as 'Regulatory Agencies'; and (b)
such minimum standards set by Regulatory Agencies as will prevent the Project
NBI.275895.V13 5 09/27/96
• 0
Water from causing any damage to USER's property and all plants and vegetation
located thereon. Furthermore, CITY agrees that Project Water delivered to
USER pursuant to this Agreement shall conform to the requirements set forth in
Exhibit B attached hereto (to be attached within sixty (60) days of the execution
of this Agreement). If the Project Water fails to conform to the above
requirements, CITY covenants that CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place, and USER may terminate this
Agreement if such requirements are not met within thirty (30) days.
In addition to the foregoing, CITY covenants that all Project Water delivered to
USER pursuant to this Agreement will not (x) emit any offensive odor, (y) cause
undesirable change to the environmental makeup of arry of the lakes found on
USER's property, including any offensive change to the odor, algae level, color or
wildlife composition of such lakes, or (z) cause damage to USER's property or
grass, plants or other vegetation located thereon, which damage shall include
excessive salt buildup. In the event that USER .shall decide, in USER's
reasonable judgment, that any of (x), (y), or (z) above exists, CITY and USER
agree to use the following procedure:
(1) USER shall notify CITY of the problem.
(2) CITY shall, within three (3) days of such notification,
investigate the problem.
(3) If CITY agrees that a problem exists, CITY will attempt to
remedy the problem. If CTTY is unable to remedy the
problem within thirty (30) days after CITY receives notice
from USER, CITY will terminate the flow of Project Water
to the SITE and provide potable water in its place.
(4) If CITY does not agree that a problem exists, CITY will
notify USER of the same within three (3) days after CITY
receives notice from USER. CITY and USER will meet to
NS1- 275895.V13 6 09/27/96
• 0
discuss the issue within seven (7) days of such notification
from CITY.
(S) If CITY and USER are still unable to agree whether a
problem exists, CITY and USER shall together select a
mediator. CITY and USER shall then present their views to
the mediator, and the mediator shall decide whether a
problem exists. CITY and USER agree to be bound by the
mediator's decision; however, CITY and /or USER may'
pursue the matter through arbitration as provided in Section
18 hereof.
(6) If the mediator decides that a problem exists, the mediator
shall proscribe the course of action CITY must take to
remedy the problem. CITY must attempt immediately
thereafter to remedy the problem in the manner proscribed.
If CITY is unable to remedy the problem within thirty (30)
days of receipt by CITY of the proscribed course of action
from the mediator, or within such longer period as deemed
reasonable by the.mediator, CITY will terminate the flow of
Project Water to the SITE and provide potable water in its
place.
(7) If the mediator decides that no problem exists, USER must
continue to accept Project Water as contemplated herein.
The replacement of.Project Water by potable water as provided above shall be on
a temporary basis .only; once CITY and USER agree that the situation has been
remedied, CITY shall provide Project Water in the place of potable water on the
SrM. If there is disagreement as to whether the situation has been remedied,
CITY and USER shall follow the procedure outlined above to resolve such
dispute.
NB1- 275895.V13 7 09/27/96
0 •
Project Water shall be delivered on a continuous basis at a pressure of not less
than ninety pounds per square inch (90 psi) for demands under thirteen hundred
gallons per minute (1,300 gpm), and not less than eighty pounds per square inch
(80 psi) for demands from thirteen hundred one gallons per minute (1,301 gpm)
to two thousand two hundred gallons per minute (2,200 gpm) at the Point of
Connection between the hours of 8:00 p.m. to 6:00 am. USER shall not exert a
demand for Project Water between the hours of 6:00 a.m. and 8:00 p.m. unless
USER's staff is present to ensure that the public does not come into contact with
Project Water.
5. PRICE OF PROJECT WATER
CITY acknowledges the concerns of USER regarding (a) the potential need to
add or adjust fertilizers and /or water supplements to the Project Water in order
to maintain high quality fairway turf, and (b) the potential need to use additional
amounts of water in order to offset the increased amounts of nutrients in the
Project Water. CITY desires to comply with State law by only requiring USER to
use reclaimed water in its irrigation operations if CITY supplies Project Water to
USER at a cost less than or comparable to the cost of potable water.
Therefore, for the first two years 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 CTTY's retail rate for potable water, excluding any
surcharges that are based on usage of potable water, as such rate is 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 CrI Y'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 give
NB1- 275895.V13 8 09M196
n
V
•
written notice to USER and provide notice as prescribed in the City Municipal
Code of a public hearing on the resolution and price which shall apply following
adoption of said resolution. Failure to give notice shall not invalidate the action
of the City Council.
If USER believes that excess irrigation costs have been incurred as a result of
switching from potable water to Project Water on the SITE, the following steps
shall be taken:
i
NB1- 275895.V13 9 09m/96
i •
Within six (6) months after the end of this two (2) year period, and within six (6)
months after the end of each two (2) year period thereafter, USER shall submit
to CITY an itemized account of the costs expended during the previous two years
that were necessary to accommodate the use of Project Water on the SITE,
including costs of fertilizers, water supplements, and /or other additives, costs of
construction of any special systems, such as a gypsum - injection system, and costs
of excess Project Water that was needed to offset the increased amounts of
nutrients in the Project Water. CITY shall review this information and, with the
help of landscape and irrigation specialists, shall determine which costs may be
solely attributed to USER's use of Project Water as opposed to potable water on
the SITE. If USER disagrees as to CITY's determination, CITY and USER shall
select a mediator to settle the dispute as set forth in Section 4(5) herein. CITY
shall then make an adjustment to the rate for Project Water that will (a)
reimburse USER for the costs incurred during the previous two (2) years that are
attributed solely to the use of Project Water as opposed to the use of potable
water, and (b) compensate USER.for the costs that are anticipated to be incurred
during the next two (2) years that are attributed solely to the use of Project Water
as opposed to potable water. The adjustment described in the previous sentence
shall be to the extent necessary for CITY to comply with State law that requires
CITY to provide Project Water to USER at a cost, including all expenses
associated therewith, that is less than or comparable to the cost of potable water.
USER and CITY may enact a formal process that implements the intent of this
paragraph.
Irrespective of the costs associated with the use by USER of Project Water, the
rate to be charged USER by CITY for Project Water shall never exceed the lower
of (a) eighty percent (80 %) of the CITY s retail rate for potable water, excluding
any surcharges that are based on usage of potable water, as such rate is
established above, or (b) the lowest rate then offered by C FY to any purchaser
NB1- 275895.V13 10 09/27/96
of reclaimed water, whether such rate is determined as a percentage of CI TY's
retail rate for potable water or otherwise.
6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY or a designated representative of CITY
shall periodically read the service meter and record usage of Project Water onto a
schedule.
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CI'1Ys regular billing cycle. Said invoices shall be paid within nineteen
(19) days of the billing date. CITY retains the right to change billing cycles and
due dates as necessary upon sixty (60) days prior written notice to USER, so long
as such change is consistent with formally adopted City-wide practices and
procedures and State law.
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for these uses.
NB1- 275895. V 13 11 09127196
9 0
9. COVENANTS, REPRESENTATIONS AND WARRANTIES
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's
irrigation needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project
Facilities and City Facilities have complied and will comply with all
regulations promulgated by all Regulatory Agencies and all other
applicable laws.
(c) The water quality requirements for Project Water during the term(s)
of this Agreement will be defined in Exhibit B attached hereto (to
be attached within sixty (60) days of the execution of this
Agreement).
(d) MY 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, CPTY will make presentations to USER, USER's
club members and related homeowners' associations with respect to
the Green Acres Project and Project Water.
(f) In the event that CITY is in breach or default under this
Agreement, CITY shall assign to USER all of its rights and
remedies under the Retailer Agreement.
NB1- 275895.V13 12 09/27/96
CITY hereby represents and warrants as follows:
(a) USER may use potable water to irrigate putting greens, the
perimeter of selected fairways located adjacent to residences, and
elsewhere on the SITE as agreed to by USER and CITY and within
acceptable State Health Department standards.
(b) OCWD is not a party to any agreement between CTTY and a user
of Project Water.
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 (a) all consequential damages; (b) all damages to any natural resources,
and the costs of any required or necessary repair, clean up, response cost, or
detoxification of the SITE or any portion thereof, and the preparation and
implementation of any closure, remedial or other required plans; and (c) all costs .
and expenses incurred in connection with clauses (a) and (b), including all
attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or
damage, including clauses (a), (b) and (c) above, shall collectively be referred to
herein as "Damages "), which arise directly or indirectly out of (x) the use by
USER of the Project Water as opposed to potable water as contemplated herein,
(y) the existence or alleged existence of any Hazardous Substances (as defined
below) in the Project Water, or (z) the failure to remove any Hazardous
Substances from the Project Water, unless such suit, claim or demand is caused
primarily by the gross negligence or willful misconduct of USER, its directors,
agents and employees, or the grossly negligent operation, maintenance or repair
by USER of Project Water distribution and on -site facilities. The foregoing
NB1- 775895.V13 13 09/27M
• •
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 CTTY's cost and
expense, with legal counsel satisfactory to USER. USER may also require CITY
to so defend the matter. CTTY 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.
CITY acknowledges that excess water from USER irrigation operations and from
lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water will
drain into the Upper Newport Bay as well. CITY agrees to indemnify, defend;
save and hold harmless USER, its directors, agents and employees from and
against any and all Damages which arise directly or indirectly out of any
modification or termination of USER's right to allow its excess water to drain into
the Upper Newport Bay when the modification or termination is required because
of USER's use of Project Water as contemplated herein.
As used herein, "Hazardous Substances" shall mean (a) any chemical, compound,
material, mixture or substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Law (as defined below) as a
"hazardous substance ", "hazardous material ", "hazardous waste ", "contaminant" or
any other formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity" or "TCLP
toxicity"; and (b) any other chemical, material, or substance that, because of its
NB1- 275895.V13 14 09121196
•
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 authorities relating to health, safety, the
environment or to any Hazardous Substances.
11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's reasonable cooperation, any and all applications and to
undertake such proceedings as may be necessary to enable OCWD, CITY and
USER to carry out the undertaking described herein, and to pursue such
applications and proceedings in good faith and with due diligence, including any
application required to be issued to OCWD by Regulatory Agencies. USER
understands and agrees that USER must comply with the regulations set forth in
permits if such permits apply to USER, provided that such compliance by USER
shall not materially increase the cost of Project Water or unreasonably interfere
with USEWs golf course and related operations.
12. INTENTIONALLY DELETED
NB1- 275895.V13 15 09/27/96
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13. CONDITIONS PRECEDENT
(a) This Agreement is conditioned upon (i) USER and OCWD
executing by November 1, 1996 that certain Agreement between
Orange County Water District and Big Canyon Country Club
Regarding Design and Construction of Reclaimed Water Retrofit at
Golf Course Facility; and (ii) USER and CITY executing by
November 1, 1996 that certain Loan Agreement for the Design,'
Construction and Retrofit of Big Canyon Country Club's Irrigation
System.
(b) This Agreement is conditioned upon OCWD's completing and
making operational the Green Acres Project by July 1, 1998,
including the following: (a) the transmission pipeline is extended to
the Site; (b) OCWD makes Project Water available for sale; and
(c) all necessary permits, certificates and approvals are issued by all
Regulatory Agencies having jurisdiction over the construction and
operation of water reclamation facilities and over the production,
distribution, sale and use of Project Water. This Agreement is
further conditioned upon (y) OCWD's acquiring by July 1, 1998,
acceptable right -of -way access from the Project Facilities to the
SITE for transportation pipeline purposes, and (z) OCWD and
CITY gaining by July 1, 1998, the approval by all federal, state and
local agencies having regulatory jurisdiction or grant- funding
responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given
time limits, USER may cancel this Agreement.
(c) Within three (3) years from the date the conditions specified in
items (a), (b), (c), (y) and (z) above have been satisfied, the
NB1- 275895.V13 - 16 09/27/96
9
E
redesign of USER's irrigation system to accommodate Project Water
shall have been completed and USER shall have begun purchasing
Project Water from CITY as provided herein.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy-
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty-four (24) hours advance notice when resumption of the delivery of Project
Water to USER's SITE is expected. In the event CM is unable to deliver
Project Water to USER or defaults under this Agreement, CITY must provide
USER with potable water at the potable water rate or reclaimed water at the
Project Water rate, subject to the right of CTTY 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 STTE back to a potable water system(s) at no expense to USER if this
Agreement is canceled by CITY during the term of this Agreement or USER
pursuant to Sections 2, 4 and 13 above.
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
NB1- 275895. V 13 17 09127/96
• •.
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The initial term of this Agreement shall be ten (10) years from the day and year
first above written. USER shall have the option to extend said initial term for
two (2) additional ten (10) year terms, provided that USER gives CITY written
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 the written consent of CITY, which consent shall not be
unreasonably withheld.
18. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the
written request of any party be arbitrated pursuant to the applicable
Nai- 275895.vi3 18 09127/96
0 •
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 iA any court having
jurisdiction. The Federal Arbitration Act shall apply to the
construction and interpretation of this arbitration agreement.
(b) A single arbitrator shall have the power to render a maximum
award of one hundred thousand dollars ($100,000). When any party
files a claim in excess of this amount, the arbitration decision shall
be made by the majority vote of three (3) arbitrators. No arbitrator
shall have the power to restrain any act of any party.
(c) No provision of subparagraph (a) shall limit the right of any party to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including, but not limited to, injunctive relief) from a
court of competent jurisdiction. The institution and maintenance of
any remedy permitted above shall not constitute a waiver of the
rights to submit any controversy or claim to arbitration. The statute
of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall
be applicable in any arbitration proceeding.
19. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
NB1- 275895.V13 19 09/27/96
r�
u
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
0
or such other address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete forty -eigbt (48) hours
after depositing the same in a United States mail depository.
20. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CITY and USER and their respective successors and assigns.
NB1- 275895.V33 20 09127/96
0 0
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
City Attorney
BIG CANYON COUNTRY CLUB,
a private corporation
Jo amilto
(;side
nt
:fi =0I
1.
ATTEST:
LaVonne Harkless
City Clerk
NBI- 275895.V13 21 09/27/96
# 0
ACKNOWLEDGEMENT 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 TO BIG CANYON COUNTRY CLUB" entered into this
day of , 1996, by and between the CITY of
Newport Beach, as the Retailer of Project Water, and Big Canyon Country Club, as the
USER of Project Water, for delivery and sale of Project Water to Big Canyon Country
Club, One Big Canyon Drive, Newport Beach, CA, for landscape irrigation.
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
Clark Ide, Esq.
General Counsel
Z,o 2 4t4
William R. Mills, Jr.
General Manager
George Osborne
President
NBI- 275895.VI3 22 09127/96
BY THE CITY COUNC!L
CITY OF NEWPORT BEACH
•
SEP 2 3' September 23, 1996
'
CITY COUNCIL AGENDA
APPROVED ITEM NO. s
TO: Mayor & Members of the City Council
FROM: Public Works Department
SUBJECT: GREEN ACRES END -USER AGREEMENTS
v'
RECOMMENDATIONS:
Approve the End -User Agreements and authorize the Mayor and City Clerk
to execute the agreements with:
C -3114 1. Newport Mesa Unified School District ( NMUSD) - Corona del Mar High
School
C— 3115 2. The Bluffs Homeowners Association (Bluffs)
C. -3 l I (p 3. .Carmen CmaWy Club
C- 3(1-1 4. Newport Beach Country Club
• . DISCUSSION:
In July the City entered into an agreement with the Irvine Ranch Water District
(IRWD) and the Orange County Water District (OCWD) to build an intertie that
would allow IRWD reclaimed water to be transferred to the OCWD. This
intertie and the use of the IRWD reclaimed water by OCWD would eliminate the
need for the water to be discharged into the San Diego Creek which flows into
the Upper Newport Bay.
OCWD agreed to extend their Green Acres Project (GAP) pipeline into Newport
Beach to accept reclaimed water from the intertie if they could obtain a low
interest loan from the state. A condition for this loan requires that at least five
(5) reclaimed water users in Newport Beach commit to using GAP reclaimed
water. This commitment is to be in the form of an End -User Agreement.
At the August 14, 1995, meeting, the City Council authorized the execution of
End -User Agreements. Since that time and primarily in the last month, the
standard form End -User Agreement approved has been modified. Attached are
copies of the End -User Agreements with NMUSD - Corona del Mar High School,
The Bluffs Homeowners Association, Big Canyon Country Club and the
Newport Beach Country Club. A cover sheet is attached to each agreement
providing information on the modifications that were made.
The fifth End -User is the City which will use GAP reclaimed water in the Bonita
Creek and East Bluff parks and possibly for the Jamboree Road medians.
l ��
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,
(;)S(k
PUBLIC WORKS DIRECTOR
Don Webb, Director
By: -✓ A.,
Mic el J. Sinacori, P.E.
Utilities Engineer
MJS:cja
Attachments: Summaries of Modifications for each End -User Agreement
Final End -User Agreements for Newport Mesa School District (CDM High School)
and The Bluffs Homeowners Association.
Draft End -User Agreements for Big Canyon Country Club and Newport Beach Country Club.
r1,
,1
• 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.
•
r 0
GREEN ACRES
RECLAIMED WATER PROJECT •
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
a
GREEN ACRES
RECLAIMED WATER PROJECT
END -USER AGREEMENT MODIFICATIONS
THE BLUFFS HOMEOWNERS ASSOCIATION
• Added indemnification clauses that cover the Bluffs
Homeowners Association against any damages from the
reclaimed water use. The City has a similar clause with
the OCWD protecting ourselves against any damages.
• Minor changes with regards to quantity of water used and
time of use.
• Modifications with regards to payment schedule.
• City agrees to compensate for all permits costs, which
there should be none of.
• Monitoring clauses have been modified to allow for
access only. Previous clauses had provisions for
installation of a water quality monitoring well.
0
J
r •
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.
�C'
Cl
0
0
A�GREEMEAT
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
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
boundaries of the City, and currently purchases potable
own use at Corona Del Mar High School (athletic fields
to as "Sites."
jurisdictional and service
water from the City for its
only) hereinafter, referred
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
Oewport-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 9
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
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• GAP End -User Agreement
Wvport-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.
0
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 °1) 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
• GAP End -User Agreement
Owport-Mesa Unified School District
September. 1996
. or in the event that the treatment criteria imposed by any Regulatory Agency exceeds
those existing as of the date of this Agreement, the City shall have the option of
canceling this Agreement. The City shall convert service on the Site back to a
potable water system(s) at no expense to User if this Agreement is canceled by the
City within ten (10) years immediately following the date hereof. The cost of
conversion back to a potable water system shall be borne by User if said conversion
occurs after ten (10) years from the date of this Agreement.
12. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of GAP water from the
Green Acres Project beyond that usable by User. The City reserves the right to enter
into contracts with others for the sale of any GAP water.
13. TERM
The term of this Agreement shall be ten (10) years from the day and year first above
written. The parties do hereby agree that any portion of this Agreement may be
revised by written amendment at any time by mutual agreement of the parties hereto.
The parties do hereby also agree that one (1) year prior to the end of the term of this
Agreement, all of the terms herein shall be reviewed, and if all of the terms are
mutually agreed upon following such review, this Agreement shall be renewed.
• 14. ASSIGNMENT
This Agreement and the rights and benefits of the City hereunder may be assigned
and transferred by the City to any entity which assumes the responsibilities and
obligations of the City for the sale and distribution of GAP water to the User.
15. INDEMNIFICATION
City shall indemnify, defend and save User harmless from and against, any and
all liability, loss, cost, expense or damage sustained by or to any person or
property and proximately caused by:
(a) Any act, neglect, default or omission of City or any of its officers, agents,
employees or representatives related to the performance of duties
pursuant to this Agreement. '
(b) The design, construction, operation, or maintenance of any City facilities
installed or constructed pursuant to this Agreement; or
(c) The distribution or sale to User of GAP water that does not meet quality
standards specified in Title 22 of the California Code of Regulations.
18
Page 5 of 11
• GAP End -User Agreement
Gewport-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 parry 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 40
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
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GAP End-User Agreement
Owport-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.
•
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Page 7 of 11
1��
GAP End -User Agreement
ewport-Mesa Unified School District
September, 1996
IN WITNESS WHEREOF, the parties herein have executed this Agreement as of
the date set forth above. .
APPROVED AS TO FORM: City of Newport Beach,
a municipal corporation
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
John Hedges
Mayor
Newport -Mesa Unified School District
a private corporation
Carolyn B. Stocker, Executive Director
Business Services & Auxiliary Operations
•
•
Page 8 of 11
1�
• GAP End -User Agreement
ewport-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
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General Manager
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AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT .
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
THE BLUFFS HOMEOWNERS ASSOCIATION
THIS AGREEMENT is made and entered into as of _ September, 1996 by and
between the City Of Newport Beach, a Municipal Corporation and charter City, hereinafter
referred to as "City," and the Bluffs Homeowners Association, a Private Corporation,
hereinafter referred to as °User."
RECITALS
The City is the exclusive retail water purveyor, including water for residential,
industrial, commercial, public agency, agricultural and other uses within the City's
boundaries, and produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
from the Orange County ground water basin; the basin is managed by the Orange
County Water District ( "OCWD ").
2. User is a private corporation within the jurisdictional and service boundaries of the
City, and currently purchases potable water from the City for its own use within the •
common areas of the Bluffs Greenbelt, Newport Beach, California, hereinafter,
referred to as "Site."
3. City has agreed to buy reclaimed water from OCWD and resell such reclaimed
water to various large volume water customers. OCWD operates a water
reclamation project known as the Green Acres Project ( "GAP "). GAP is being
extended into the City's service area for the purpose of conserving and beneficially
reusing wastewater received by OCWD from the County Sanitation Districts of
Orange County, such wastewater having been treated, transported and sold by
OCWD as "GAP water" to the City to be resold to Users. GAP water is suitable for
use in landscape and agricultural irrigation, and industrial and construction
purposes, in lieu of potable water.
4. User desires to purchase GAP water from the City for allowable, suitable
nonpotable uses, specifically, for landscape irrigation, in lieu of potable water
currently purchased from the City.
5. The City is willing to sell GAP water to User.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions herein contained, the parties hereto agree as follows:
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GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
0 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.
9 2. RULES AND REGULATIONS
User agrees that during the term of this Agreement and any extension thereof, User
shall comply with all rules and regulations promulgated now and in the future by the
City relative to the sale and use of GAP water and those rules and regulations
promulgated now and in the future by OCWD relative to the transportation and use of
GAP water, hereinafter referred to as "Project Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
The City agrees to supply GAP water to User, and User agrees to purchase GAP
water. The anticipated average annual GAP water usage at Site is estimated to be
one hundred sixty (160) acre -feet. GAP water flow demands to the Site's three
services (1720 S. Vista Del Oro, 2052 S. Vista Del Oro, and 2150 S. Vista Del Oro)
shall not exceed an instantaneous maximum combined flow of nine hundred and
sixty (960) gallons per minute from the three meters. By entering into -this
Agreement, the City's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD. To the
extent that User's current use of its property necessitates the use of GAP water, User
will continue to purchase GAP water. In the event that the current use of the property
discontinues or is modified, User may modify or terminate this Agreement as
applicable, subject to the conditions set forth in Section 13 of this Agreement.
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September, 1996
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, the City reserves the
right, and has the authority, to take action to insure that the situation shall be
remedied, and to protect the public health, as further set forth in the Project Rules.
Such remedies may include, but shall not be limited to, the right of the City to
terminate GAP water service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
The City agrees, subject to compliance by OCWD, that all GAP water delivered to
User from the Project Facilities pursuant to this Agreement shall conform to the
current and future requirements established by the California Regional Water Quality
Control Board - Santa Ana Region, state and local health departments, and federal,
state and county agencies, hereinafter referred to as "Regulatory Agencies," having
jurisdiction to fix minimum standards for the quality of water, with respect to User's
anticipated use.
GAP water shall be delivered on a continuous basis at a pressure of not less than
sixty pounds per square inch (60 psi) at the Point of Connection between the hours
of 9:00 p.m. and 6:00 a.m. User shall not exert demand for GAP water between the
hours of 6:00 a.m. and 9:00 p.m., without User's trained maintenance personnel or
designated representative being present.
5. PRICE OF PROJECT WATER •
For the term of this Agreement, the price to be paid by User for GAP water delivered
by the City shall not exceed eighty percent (80 %) of the City's retail rate for potable
water, as established by resolution of the City Council and enforced on the date of
delivery of GAP water. The retail rate for potable water shall be subject to
modification as determined by and within the discretion of the City Council. At least
10 days prior to the adoption of a resolution establishing the water rate of the City
and/or modifying the purchase price of GAP water, the City shall give written notice to
User of a hearing on the resolution and price which shall apply following adoption of
said resolution. Failure to give notice shall not invalidate the action of the City
Council.
6. METERING AND MEASUREMENT OF FLOWS
User agrees that at locations where irrigation water is used exclusively, the City shall
maintain, at its own expense, a control valve or valves and two (2) four -inch (4 ")
meters and one (1) six -inch (6 ") meter for the purpose of measuring the quantity of
GAP water delivered pursuant to the terms of this Agreement from the City to User at
the Point of Connection where such water is delivered to User. The City shall read
the service meters and record GAP water usage for User on a monthly basis. OCWD
shall be given access to said service meters to take readings.
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GAP End -User Agreement
*Bluffs Homeowners Association
September, 1996
. 7. PAYMENT FOR PROJECT WATER
The City shall invoice User for the price 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. 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,
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GAP End -User Agreement
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September, 1996
certificates and approvals by all Regulatory Agencies having jurisdiction over the •
construction and operation of water reclamation facilities and over the production,
distribution, sale and use of GAP water. This Agreement is conditioned further upon
OCWD's being able to acquire acceptable right -of -way access from the Project
Facilities to the Site for transportation pipeline purposes, and is further conditioned
upon approval by Regulatory Agencies or agencies having grant funding
responsibilities with regard to the Project Facilities.
12. CONDITIONS SUBSEQUENT
In the event that the City is unable to deliver GAP water through Project Facilities, the
City reserves the right to notify User a minimum of 24 hours advance notice, except
in the event of emergencies, that said deliveries shall temporarily cease. The City
shall provide User with a minimum of 24 hours advance notice when resumption of
GAP water delivery is expected at User's Site. In the event the City is unable to
provide delivery of GAP water, the City will provide water to User from alternative
sources at the full potable water rate, subject to the right of the City to determine
allocation of all water, both GAP and potable, in the event of emergencies.
Furthermore, in the event that OCWD ceases producing and distributing GAP water
or in the event that the treatment criteria imposed by any Regulatory Agency exceeds
those existing as of the date of this Agreement, the City shall have the option of
canceling this Agreement. The City shall convert service on the Site back to a
potable water system(s) at no expense to User if this Agreement is canceled by the
City within fifteen (15) years immediately following the date hereof. The cost of .
conversion back to a potable water system shall be borne by User if said conversion
occurs after fifteen (15) years from the date of this Agreement.
13. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of GAP water from the
Green Acres Project beyond that usable by User. The City reserves the right to enter
into contracts with others for the sale of any GAP water.
14. TERM
The term of this Agreement shall be fifteen (15) years from the day of first use of GAP
water at Site. The parties do hereby agree that any portion of this Agreement may be
revised by written amendment at any time by mutual agreement of the parties hereto.
The parties do hereby also agree that one (1) year prior to the end of the term of this
Agreement, all of the terms herein shall be reviewed, and if all of the terms are
mutually agreed upon following such review, this Agreement shall be renewed.
15. ASSIGNMENT
This Agreement and the rights and benefits of the City hereunder may be assigned
and transferred by the City to any entity which assumes the responsibilities and
obligations of the City for the sale and distribution of GAP water to the User.
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16. INDEMNIFICATION
GAP End -User Agreement
061utfs Homeowners Association
September, 1996
City shall indemnify, defend and save User harmless from and against, any and
all liability, loss, cost, expense or damage sustained by or to any person or
property and proximately caused by:
(a) Any act, neglect, default or omission of City or any of its officers, agents,
employees or representatives related to the performance of duties
pursuant to this Agreement.
(b) The design, construction, operation, or maintenance of any City facilities
Installed or constructed pursuant to this Agreement; or
(c) The distribution or sale to User of GAP water that does not meet quality
standards specified in Title 22 of the California Code of Regulations.
If User is sued for damages by reason of any of the acts, omissions or activities
for which City is required to indemnify User pursuant to this Section, City shall
defend the action at its own expense and shall pay any judgment that may be
rendered. in the event City fails or neglects to defend User in the Action, User
may defend the action and any expenses, including reasonable attorneys' fees
and cost which User pays or incurs in defending the action, and the amount of
any judgment which User may be required to pay, shall be promptly reimbursed
by City upon demand.
The indemnification, defense and hold harmless obligations of City specified in
this Section do not extend to damages, losses, injuries, lawsuits or claims
resulting from the acts or omissions of User or its officers, agents,
representatives and employees.
17. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or other
proceeding against the other party arising out of or relating to the subject matter
of this Agreement, its validity or any of the terms or provisions thereof, then the
prevailing party in such action, suit, arbitration or other proceeding shall recover
from the other party its reasonable attorneys' fee costs incurred in connection
therewith, in addition to any other relief to which it may be entitled. Said
attorneys' fees shall include such fees for prosecuting or defending any appeal
and shall be recoverable, and awarded for any supplemental proceedings until
the final judgment is satisfied in full.
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GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
18. NOTICES .
All notices, payments, transmittals of documentation and other writings required or
permitted to be delivered or transmitted to either of the parties hereto under this
Agreement shall be personally served or deposited in the United States mail
depository first class postage prepaid, and addressed as follows:
City: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA. 92658 -8915
Attention: Don Webb
Public Works Director
User: The Bluffs Homeowners Association
P.O. Box 8167
Newport Beach, CA 92658 -8167
Attention: Kevin Shannon
General Manager
or such other address as the City or User shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after depositing in •
United States mail depository.
19. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon and inure to
the benefit of the City and User, and their respective successors and assigns.
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• WITNESS WHEREOF, the parties herein have executed this Agreement as of the
date set forth above.
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
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City of Newport Beach,
a municipal corporation
John Hedges
Mayor
The Bluffs Homeowners Association
a private corporation
Ron Foster
President
Robert Orman
Secretary
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• 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
General Counsel
de109 -04- 9613:15
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
President
General Manager
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0 AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
BIG CANYON COUNTRY CLUB
THIS AGREEMENT is made and entered into this _ day of ,
1996 by and between the City of Newport Beach, a Municipal Corporation, hereinafter
referred to as "CITY ", and the Big Canyon Country Club, a private, non-profit mutual
benefit corporation, hereinafter referred to as "USER ".
RECITALS
1. CITY is the exclusive retail water purveyor, providing water for residential,
industrial, commercial, public agency, agricultural and other uses within CITY's
boundaries. CITY produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
. from the Orange County groundwater basin, which basin is managed by the
Orange County Water District ( "OCWD ").
2. USER is a private corporation within the jurisdictional and service boundaries of
CITY, and currently purchases potable water from CITY for its own use at Big
Canyon Country Club, One Big Canyon Drive, Newport Beach, California,
hereinafter, referred to as "SITE ".
3. CITY has agreed to buy reclaimed water from OCWD and resell such reclaimed
water pursuant to the terms and conditions specified in that certain agreement
entitled "Agreement Between Orange County Water District and City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water" dated
January 16, 1991, and as it may be subsequently amended, hereinafter
referred to as "Retailer Agreement." City executed the Retailer Agreement for
the purpose of seeking to provide its present and future residents with a
supplemental source of water to meet their needs and to assist in the statewide
objective of conserving and utilizing to the maximum degree possible the water
of the People of the State of California, which water shall be recovered from the
operation known as the "Green Acres Project" for all possible beneficial uses.
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GAP End-User Agreement
Big Canyon Country Club
September, 1996
4. The Green Acres Project is being planned for extension into CITY's service area •
for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the Irvine Ranch Water District,
( "IRWD "), such wastewater having been treated by OCWD or IRWD to standards
established by the State Health Department and transported and sold by
OCWD as "Project Water" to CITY to be resold to Project Customers. Such
Project Water must be deemed suitable by State Health Department for use in
landscape and agricultural irrigation and for industrial and construction
purposes in lieu of potable water.
5. USER desires to purchase Project Water from CITY for allowable, suitable
nonpotable uses, specifically landscape irrigation of its golf course and certain
related facilities, in lieu of potable water currently purchased from CITY, and
CITY is willing to sell Project Water to USER.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the Green
Acres Project that will convey Project Water to various locations within CITY •
boundaries, including the SITE. All Project Water will originate from either the
OCWD Green Acres Project Water Treatment Facility, or a similar facility
operated by IRWD. OCWD owns the main transmission pipeline facility and
service line which serves USER upstream of CITY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CITY owns, operates and maintains all reclaimed water service
meter vault piping, by -pass line piping, service meter vault, service meter and
control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities." USER owns and maintains the pipelines, pump station,
backflow preventers, warning signs, warning tags and all appurtenances
downstream of CITY's reclaimed water service meter vault, which facilities shall
hereinafter be referred to as "On -Site Facilities" and are more fully set forth on
the drawings attached hereto as Exhibit A. The point where USER's piping
connects to the downstream end of CITY's reclaimed water service meter vault
shall hereinafter be referred to as the "Point of Connection ". The Point of
Connection will be in the Jamboree Road parkway near USER's maintenance
yard entrance approximately 1,300 feet northerly of San Joaquin Hills Road.
That portion of the Project Facilities and City Facilities located within CITY's
boundaries will be operated and maintained by CITY as a contractor for OCWD
for the purpose of distributing Project Water to be purchased from CITY by
USER.
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Big Canyon Country Club
September, 1996
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof;
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be
referred to as "Project Rules." In the event that CITY and/or OCWD or any other
governmental agency shall promulgate any rule or regulation that shall
increase above the potable rates, the cost of USER's transportation and/or use
of Project Water as contemplated herein, USER may terminate this Agreement,
upon sixty (60) day notice to CITY and as set forth in Section 14 of this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
CITY agrees to supply Project Water to USER, and USER agrees to purchase
Project Water. Average annual Project Water usage at Site is estimated to be
three hundred and sixty (360) acre -feet. Project Water flow demands at the
SITE's service shall not exceed an instantaneous maximum flow of two
thousand two hundred (2,200) gallons per minute. By entering into this
• Agreement, CITY's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD.
In the event that the current use of the property discontinues or is modified,
USER may modify or terminate this Agreement, as applicable, subject to the
conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, CITY reserves the
right, and has the authority, to take action to insure that the situation be
remedied and to protect the public health, as further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees, subject to compliance by OCWD, that all PROJECT Water
delivered to USER from the Project Facilities pursuant to this Agreement shall
conform to (i) the current and future requirements established by the California
Regional Water Quality Control Board - Santa Ana Region, State and local
health departments, and Federal, State and county agencies having jurisdiction
to fix minimum standards for the quality of water with respect to USER's
anticipated use, which Board, health departments and agencies shall
• hereinafter be referred to as "Regulatory Agencies "; and (ii) such minimum
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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.
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• ` GAP End -User Agreement
Big Canyon Country Club
September, 1996
6. METERING AND MEASUREMENT OF FLOWS
USER agrees that at locations where irrigation water is used exclusively, CITY
shall maintain, at its own expense, a control valve or valves and a meter for the
purpose of measuring the quantity of Project Water delivered pursuant to the
terms of this Agreement from CITY to USER at the Point of Connection where
such water is delivered to USER. CITY shall periodically read the service meter
and record usage of Project Water onto a schedule. OCWD shall be given
access to said service meter to take readings.
7. PAYMENT FOR PROJECT WATER
CITY shall invoice USER for the price of the Project Water purchased by USER
as part of CITY's regular billing cycle. Said invoices shall be paid within
nineteen (19) days of the billing date, CITY retains the right to change billing
cycles and due dates as necessary, upon sixty (60) days prior notice to USER,
so long as such change is consistent with formally adopted City wide practice
and procedures and State law.
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
. Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for those uses and
purposes provided for herein which are legally permissible under the laws of
the State, the Project Rules and rules adopted by CITY, by OCWD, and by
Regulatory Agencies.
9. COVENANTS
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's irrigation
needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project Facilities
and City Facilities have complied and will comply with all regulations
promulgated by all Regulatory Agencies and all other applicable laws.
(c) The water quality parameter limits of the Project Water during the term(s)
of this Agreement will be as shown on the chart attached hereto as
Exhibit C.
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(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 red_ esign 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. 0
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. • GAP End -User Agreement
Big Canyon Country Club
September, 1996
. The obligations of CITY and OCWD under this Section 10 shall survive the
term(s) of this Agreement.
As used herein, "Hazardous Substances" shall mean (i) any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Law (as defined
below) as a "hazardous substance ", "hazardous material ", "hazardous waste ",
"contaminant" or any other formulation not mentioned herein intended to define,
list, or classify substances by reason of deleterious properties such as ignitabili-
ty, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP
toxicity" or "TCLP toxicity"; and (ii) any other chemical, material, or substance
that, because of its quantity, concentration, or physical or chemical
characteristics, exposure to which is limited or regulated for health and safety
reasons by any governmental authority, or which poses a significant present or
potential hazard to human health and safety or to the environment if released
into the workplace or the environment. "Environmental Law" shall mean shall
mean any and all present and future Federal, state and local laws (whether
under common law, statute or otherwise), ordinances, regulations, permits,
guidance documents, policies, and any other requirements of governmental au-
thorities relating to health, safety, the environment or to any Hazardous
Substances.
. 11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be borne by CITY. CITY agrees to file in USER's
name, with USER's cooperation, any and all applications and undertake such
proceedings as may be necessary to enable OCWD, CITY and USER to carry
out the undertaking described herein, and to pursue such application and
proceedings in good faith and with due diligence, including any application
required to be issued to OCWD by Regulatory Agencies. USER understands.
and agrees that USER must comply with the regulations set forth in permits if
such permits apply to USER, provided that such compliance by USER shall not
materially increase the cost of Project Water or unreasonably interfere with
USER's golf course and related operations.
12. ACCESS
USER agrees to allow CITY, Regulatory Agencies and/or OCWD's
representatives to enter USER's SITE for sampling, analysis and observation of
USER's On Site Facilities.
•
Page 7 of 12
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. GAP End -User Agreement
Big Canyon Country Club
September, 1996
13. CONDITIONS PRECEDENT
This Agreement is conditioned upon OCWD's completing and making
operational the Green Acres Project by July 1, 1998, including the following:
(1) the transmission pipeline is extended to the Site; (2) OCWD makes Project
Water available for sale; and (3) all necessary permits, certificates and
approvals are issued by all Regulatory Agencies having jurisdiction over the
construction and operation of water reclamation facilities and over the
production, distribution, sale and use of Project Water. This Agreement is
further conditioned upon (i) OCWD's acquiring by July 1, 1998, acceptable
right -of -way access from the Project Facilities to the SITE for transportation
pipeline purposes, and (ii) OCWD and CITY gaining by July 1, 1998, the
approval by all federal, state and local agencies having regulatory jurisdiction
or grant funding responsibilities with respect to the Project Facilities. If the
conditions specified in this Section 13 are not met within the given time limits,
USER may cancel this Agreement.
14. CONDITIONS SUBSEQUENT
In the event that CITY is unable to deliver Project Water through Project
Facilities, CITY reserves the right to provide USER with a minimum of seventy -
two (72) hours advance notice, except in the event of emergencies, that said
deliveries shall temporarily cease. CITY shall provide USER with a minimum of
twenty -four (24) hours advance notice when resumption of the delivery of .
Project Water to USER's SITE is expected. In the event CITY is unable to
deliver Project Water to USER or defaults under this Agreement,. CITY must
provide USER with water from alternative sources at the full potable water rate,
subject to the right of CITY to determine allocation of all water, both Project
Water and potable, in the event of emergencies. If USER terminates this
Agreement as authorized under the terms of this Agreement, CITY must provide
USER with potable water in the place of Project Water. Furthermore, in the
event that OCWD ceases producing and distributing Project Water or in the
event that the treatment criteria imposed by any Regulatory Agencies exceeds
those existing as of the date of this Agreement, either CITY or USER shall have
the option to cancel this Agreement. CITY shall convert service on the SITE
back to a potable water system(s) at no expense to USER if this Agreement is
canceled by CITY during the initial term of this Agreement or USER pursuant to
Sections 2 and 4 above. The cost of conversion back to a potable water system
shall be bome by USER if said conversion occurs after . the initial term of this
Agreement.
Page 8 of 12
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• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
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 parry be arbitrated pursuant to the applicable rules of the
American Arbitration Association. The arbitration shall occur in the State
of California. Judgment upon any award rendered by the arbitrator(s)
may be entered in any court having jurisdiction. The Federal Arbitration
Act shall apply to the construction and interpretation of this arbitration
agreement.
(b) A single arbitrator shall have the power to render a maximum award of
one hundred thousand dollars. When any party files a claim in excess of
this amount, the arbitration decision shall be made by the majority vote of
three arbitrators. No arbitrator shall have the power to restrain any act of
any party.
Page 9 of 12
• . GAP End-User Agreement
Big Canyon Country Club
September, 1996
(c) No provision of subparagraph (a) shall limit the right of any party to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including but not limited to injunctive relief) from a court of
competent jurisdiction. The institution and maintenance of any remedy
permitted above shall not constitute a waiver of the rights to submit any
controversy or claim to arbitration. The statute of limitations, estoppel,
waiver, laches, and similar doctrines which would otherwise be
applicable in an action brought by a party shall be applicable in any
arbitration proceeding.
19. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail .
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Public Works Director
USER: Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Attention: General Manager
or such over address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after
depositing in a United States mail depository.
20. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CITY and USER and their respective successors and assigns.
Page 10 of 12
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• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
• WITNESS -WHEREOF, the parties herein have executed this
Agreement as of the date set forth above.
0
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 ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel President
General Manager
F:\cat \debbie\ag\bigcan.doc
09 -16 -96
Page 12 of 12
•
i
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.
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• GAP End -User Agreement
Newport Beach country Clib
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 CITYs boundaries will be
operated and maintained by CITY as a contractor for OCWD for the purpose of
distributing Project Water to be purchased from CITY by USER. USER shall
also own and maintain all devices on USER's Site potable water system
including, but not limited to, (drinking fountain covers, backflow preventers, air -
gaps and lake fills, identification tags, etc.)
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be
referred to as "Project Rules." In the event that CITY and/or OCWD or any other
governmental agency shall promulgate any rule or regulation that shall
increase above the potable rates, the cost of USER's transportation and/or use
of Project Water as contemplated herein, USER may terminate this Agreement,
upon thirty (30) day notice to CITY and as set forth in Section 14 of this
Agreement.
Page 2 of 12
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• GAP End -User Agreement
Newport Beach Cotntry Club
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
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• •GAP End -User Agreement
Newport Beach Couriry 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
E
• , GAP End -User Agreement
Newport Beach Country Club
September, 1996
8. LIMITATION OF USE
USER understands and agrees that Project Water delivered from OCWD's
Project Facilities pursuant to the terms hereof has restricted uses, and USER
agrees to use the Project Water only upon the property of USER for the
irrigation of its golf course and related facilities and only for those uses and
purposes provided for herein which are legally permissible under the laws of
the State, the Project Rules and rules adopted by CITY, by OCWD, and by
Regulatory Agencies.
9. COVENANTS
CITY hereby covenants as follows:
(a) There will be sufficient Project Water to meet all of USER's irrigation
needs with respect to the SITE.
(b) All actions taken by CITY with respect to Project Water, Project Facilities
and City Facilities have complied and will comply with all regulations
promulgated by all Regulatory Agencies and all other applicable laws.
(c) The water quality parameter limits of the Project Water during the term(s)
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
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• GAP End -User Agreement
Newport Beach Cotntry Club
September, 1996
INDEMNIFICATION
CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or
demands, including (i) all consequential damages; (ii) all damages to any
natural resources, and the costs of any required or necessary repair, clean up,
response cost, or detoxification of the SITE or any portion thereof, and the
preparation and implementation of any closure, remedial or other required
plans; and (iii) all costs and expenses incurred in connection with clauses (i)
and (ii), including all attomeys' fees and expenses, whether in suit or not, which
arise directly or indirectly out of (x) the use by USER of the Project Water as
contemplated herein, (y) the existence or alleged existence of any Hazardous
Substances (as defined below) in the Project Water or (z) the removal of or
failure to remove any Hazardous Substances from the Project Water unless.
such suit, claim or demand is caused by the negligence or willful misconduct of
USER, its directors, agents and employees, the negligent operation,
maintenance or repair by USER of Project Water distribution and on site
facilities; or USER's misuse or misapplication of Project Water on the Site. The
foregoing indemnity shall apply to any residual contamination on, under or
about the SITE and to any contamination of any property or natural resources
arising from the Project Water.
Upon receiving knowledge of any suit, claim or demand asserted by a third
party that USER believes is covered by this indemnity, USER shall give CITY
notice of the matter and an opportunity to defend it, at CITY's cost and expense,
with legal counsel satisfactory to USER. USER may also require CITY to so
defend the matter. CITY will pay all fees or penalties imposed by any
Regulatory Agency or any other governmental authority for any violation of any
code, regulation or law with respect to the transportation, use or chemical
composition of the Project Water. The obligations of CITY under this
Section 10 shall survive the term(s) of this Agreement.
As used herein, "Hazardous Substances" shall mean (i) any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Law (as defined
below) as a "hazardous substance ", "hazardous material ", "hazardous waste ",
"contaminant" or any other formulation not mentioned herein intended to define,
list, or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity,
"EP toxicity" or "TCLP toxicity"; and (ii) any other chemical, material, or
substance that, because of its quantity, concentration, or physical or chemical
characteristics, exposure to which is limited or regulated for health and safety
reasons by any governmental authority, or which poses a significant present or
potential hazard to human health and safety or to the environment if released
into the workplace or the environment. "Environmental Law" shall mean shall
mean any and all present and future Federal, state and local laws (whether
Page 6 of 12
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GAP End -User Agreement
Newport Beach country C11b
September, 19%
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 bome 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 Beech 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
bome by USER if said conversion occurs after the initial term of this Agreement.
14. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
15. TERM
The term of this Agreement shall be ten (10) years from the day and year first .
above written. USER shall have the option to extend said term for two (2)
additional ten (10) year terms, provided that USER gives CITY written notice of
such election at least six (6) months prior to the expiration of the previous term.
The parties do hereby agree that any portion of this Agreement may be revised
by written amendment at any time by mutual agreement of the parties hereto.
16. ASSIGNMENT
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without written consent from CITY and OCWD, which consent shall not
be unreasonably withheld.
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GAP End -User Agreement
Newport Beach country Ckub
September, 1996
17. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims arising
directly or indirectly out of this Agreement shall at the written request of
any parry 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
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GAP End -User Agreement
Newport Beech Country Club
September, 1998
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.
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•
•
GAPEnd -User Agreement
Newport Beach Country Club
September, 1996
• 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:
LaVonne Harkless
City Clerk
•
•
1.
John Hedges
Mayor
THE NEWPORT BEACH COUNTRY CLUB"
a private corporation
Jerry L. Anderson
Director of Goff
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ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
GAPEnd -User Agreement
Newport Beach Country Club
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT BEACH
COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN ACRES PROJECT
WATER AT NEWPORT BEACH COUNTRY CLUB" entered into this day
of , 1996, by and between the CITY of Newport Beach, as the
Retailer of Project Water, and The Newport Beach Country Club, as the USER of
Project Water, for delivery and sale of Project Water to Newport Beach Country Club,
1600 East Coast Highway, Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM: ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
i,
0
General Counsel President
General Manager •
f: lcatldebbielaglcleanlnbcc. doc
09.16 -96
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