HomeMy WebLinkAboutC-3117 - End-User Ten-Year Agreement, Green Acres Project0
AGREEMENT BETWEEN ORANGE COUNTY WATER DISTRICT,
CITY OF NEWPORT BEACH AND
NEWPORT BEACH COUNTY CLUB
REGARDING RETROFITTING IRRIGATION FACILITIES
AT NEWPORT BEACH COUNTRY CLUB
FOR USE OF GREEN ACRES PROJECT WATER
This Agreement (the "Agreement ") is made and entered into as of
December 18, 1996, by and between the ORANGE COUNTY WATER
DISTRICT, a political subdivision of the State of California, hereinafter referred
to as "OCWD," the CITY OF NEWPORT BEACH, a municipal corporation,
hereinafter referred to as "CITY," and NEWPORT BEACH COUNTRY
CLUB, a private, non - profit mutual benefit corporation, hereinafter referred to
as "USER."
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 Newport Beach Country Club, Newport Beach, California.
C. USER has agreed to purchase Project Water from CITY for
allowable, suitable nonpotable uses, specifically landscape irrigation of its golf
course and certain related facilities (hereinafter referred to as the "SITE ") in lieu
of potable water currently purchased from CITY except for the irrigation of
putting greens, the perimeter of selected fairways located adjacent to
residences, and elsewhere on the SITE as agreed to by USER and CITY and
within acceptable State Health Department standards, as set forth in that certain
"Third Amended and Restated Agreement; Green Acres Reclaimed Water
Project End -User Agreement for delivery and sale of reclaimed water to
OCWD DOC. � �& STAR NO. /2
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Newport Beach Country Club" (the "End -User Agreement ") dated as of
September 30, 1996, by and between CITY and USER.
D. USER acknowledges the benefit of receiving Project Water for use
as irrigation water at the SITE.
E. OCWD and CITY acknowledge the benefit of having USER
receive Project Water during the time period specified herein.
F. OCWD and CITY acknowledge that USER will incur substantial
costs for retrofitting the existing irrigation system for the use of Project Water at
the SITE.
AGREEMENT
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions herein contained, the parties hereto agree as
follows:
1. USER has agreed to receive Project Water subject to the terms
and conditions of the End -User Agreement. OCWD and CITY have agreed to
pay USER for the retrofit of USER's irrigation system. Those payments are set
forth herein.
2. OCWD shall (a) contribute to USER Two Hundred Thousand
Dollars ($200,000) in immediately available funds on March 1, 1997, and (b) be
responsible for the design and construction of the Project Water service
connection and bear all costs associated therewith.
3. CITY shall (a) contribute to USER Forty -One Thousand Dollars
($41,000) in immediately available funds on July 1, 1997, (b) pay for the
construction and maintenance of the Pump Station on the SITE, and (c)
reimburse USER for the energy costs associated with the Pump Station for ten
(10) years following the date Project Water is provided to the SITE.
. • •
4. USER acknowledges that OCWD's and CITY's contributions
towards preparing the SITE for the use of Project Water represents a significant
expenditure of public funds. Therefore, in the event USER abandons the use of
Project Water within ten (10) years from the day and year first above written
except as provided below, USER shall reimburse OCWD and CITY for said
contributions in Sections 2 and 3 above, respectively (each, the "Principal")
less the Principal Forgiven (defined herein as ten percent (10 %) of Principal per
year for each year Project Water is used), plus the cumulative interest (defined
herein as six percent (6 %) compounded annually from the date such Principal
was provided to USER) on the Residual Principal (defined herein as Principal
less Principal Forgiven) at the time of abandonment, as set forth in Exhibits A
and_B respectively, attached hereto and incorporated herein. Abandonment of
Project Water shall be understood to mean usage of Project Water which is less
than 50 acre -feet in any twelve (12) month period. USER shall be exempt from
said reimbursement requirement if USER abandons the use of Project Water
pursuant to Sections 2, 4, 13 or 14 of the End -User Agreement.
5. This Agreement and the rights and benefits of OCWD and CITY
hereunder may be assigned or transferred by OCWD and CITY to any entity that
assumes the responsibilities and obligations of OCWD and/or CITY for the sale
and distribution of Project Water, provided, however, that OCWD and CITY shall
remain fully liable for all of the responsibilities and obligations of OCWD and
CITY hereunder, respectively. USER shall not assign or transfer the rights and
benefits of USER under this Agreement to any entity without the prior written
consent of OCWD and CITY, which consent shall not be unreasonably withheld
or delayed.
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 to the
End -User Agreement may be used by USER without any measurable adverse
consequences (financial or otherwise to the SITE.
8. The term of this Agreement shall be for ten (10) years from the day
and year above written. The parties do hereby agree that any portion of this
Agreement may be revised by written amendment at any time by mutual
agreement of the parties hereto.
9. All notices, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties
hereto under this Agreement shall be personally served or deposited in the
United States mail depository first class postage prepaid, and addressed as
follows:
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728 -8300
Attention: General Manager
CITY: City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: Newport Beach Country Club
1600 E. Coast Hwy
Newport Beach, CA 92660
Attention: General Manager
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
General Counsel President
CITY OF NEWPORT BEACH,
a munjcipal corporation
(Robert Burnham, Esq.
City Attorney
ATTEST:
ci'a f1 '
LaVonne Harkless
City Clerk
By: "I'(w
General manager I -V
,�;ilffi✓rr,
NEWPORT BEACH COUNTRY CLUB,
a private corporation
President
EXHIBIT A
GREEN ACRES PROJECT
01
NEWPORT BEACH COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE ORANGE COUNTY WATER DISTRICT
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (OCWD Funding) $200,000.00
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL DEBT
1st Year
$200,000.00
$12,000.00
$212,000.00
2nd Year
$180,000.00
$29,952.00
$209,952.00
3rd Year
$160,000.00
$41,552.00
$201,552.00
4th Year
$140,000.00
$50,470.00
$190,470.00
5th Year
$120,000.00
$56,316.00
$176,316.00
6th Year
$100,000.00
$58,690.00
$158,690.00
7th Year
$ 80,000.00
$57,104.00
$137,104.00
8th Year
$ 60,000.00
$51,054.00
$111,054.00
9th Year
$ 40,000.00
$39,960.00
$ 79,960.00
1OthYear
$ 20,000.00
$23,178.00
$ 43,178.00
After 10th Year
$ 0.00
$ 0.00
$ 0.00
GREEN ACRES PROJECT
0
NEWPORT BEACH COUNTRY CLUB REIMBURSEMENT OBLIGATION
TO THE CITY OF NEWPORT BEACH
IN THE EVENT OF ABANDONMENT OF SERVICE
Principal (City of Newport Beach Funding)
Interest Rate:
Abandonment Obligation Commences:
Abandonment Obligation Ends:
$41,000.00
6.00%
Date Green Acres Water First Served
Ten Years after Obligation Commences
TOTAL
ABANDONMENT
PRINCIPAL
INTEREST
POTENTIAL DEBT
IstYear
$41,000.00
$ 2,460.00
$43,460.00
2nd Year
$36,900.00
$ 6,140.16
$43,040.16
3rd Year
$32,800.00
$ 8,518.16
$41,318.1.6
4th Year
$28,700.00
$10,346.35
$39,046.35
5th Year
$24,600.00
$11,544.78
$36,144.78
6th Year
$20,500.00
$12,031.45
$32,531.45
7th Year
$16,400.00
$11,706.32
$28,106.32
8th Year
$12,300.00
$10,466.07
$22,766.07
9th Year
$ 8,200.00
$ 8,191.80
$16,391.80
10th Year
$ 4,100.00
$ 4,751.49
$ 8,851.49
After 10th Year
$ 0.00
$ 0.00
$ 0.00
THIRD AMENDMENT TO AGREEMENT
THIS THIRD AMENDMENT is made and entered into this 9th day of
December, 1996 by and between the City of Newport Beach, a Municipal
Corporation, hereinafter referred to as "City ", and the Newport Beach Country
Club, Inc., a California corporation, hereinafter referred to as "User."
RECITALS
A. City and User entered into an Agreement, dated September 30, 1996 for
the delivery and sale of reclaimed water.
B. Paragraph 13(a) of the Agreement provides that the Agreement is
conditioned upon User and the Orange County Water District ( "OCWD ") executing
by November 1, 1996 an agreement regarding the design and construction of
reclaimed water retrofit at User's golf course facility and a loan agreement for the
design, construction and retrofit of the User's irrigation system.
C. City and User entered into an Amendment to the Agreement and
subsequently a Second Amendment to Agreement to extend the deadline in
Paragraph 13 (a) (i) and 13 (a) (ii) to November 30,1996. The Parties now wish to
extend the deadline a third time to December 18, 1996 and delete any reference
to a loan agreement by the City, but rather provide for a three party Retrofitting
Irrigation Facilities Agreement between City, OCWD and Newport Beach Country
Club ( "NBCC ").
D. Paragraph 1 now provides that the User shall be responsible for all energy
costs associated with the pump station owned and maintained by the City.
Paragraph 1 also provides that User will grant to City an easement or license
across User's property to provide reasonable access for the pump station. The
parties now wish to amend Paragraph 1 to provide that the City will pay for the
energy costs for the pump station for ten years and clarify that the easement for the
pump station shall be for the construction, installation and maintenance of the
pump station. Further, the parties wish to amend that Paragraph 1 to clarify that
the easement shall be provided to the City at no cost to the City.
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions of this Amendment and the Agreement, the
parties agree as follows:
Paragraph 13 (a) (i) and (ii) are hereby amended to read as follows:
"This agreement is conditioned upon OCWD, CITY and USER
executing by December 18, 1996 that certain Agreement between
Orange County Water District, City of Newport Beach and Newport
Beach Country Club Regarding Retrofitting Irrigation Facilities at
Newport Beach Country Club for Use of Green Acres Project Water. ",
2. The fourth paragraph contained in Paragraph 1 is hereby amended
to read as follows: 3 PPPAb 31
OCWD DOC. .? �A /CCVQjI �4� +� +�L�
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"CITY shall be responsible for all costs associated with constructing
and maintaining a pump station on the SITE (the "Pump Station "),
which Pump Station shall be owned by CITY. For ten (10) years
following the date Project Water is provided to the SITE as provided
herein, CITY shall be responsible for all energy costs associated with
the Pump Station, and USER shall be responsible for all such energy
costs thereafter. USER and CITY shall execute a separate
agreement in which USER will grant to CITY at no cost to CITY an
easement or license across USER's property to provide reasonable
access for the construction, installation and maintenance of the
Pump Station. Such agreement will be attached hereto within sixty
(60) days of the execution of this Agreement as Exhibit ."
IN WITNESS WHEREOF, the parties herein have executed this Amendment to
Agreement as of the date set forth above.
APPROVED AS TO FORM:
ORANGE COUNTY WATER DISTRICT,
a political) subdivision of the State of California
By: -�� By: �oe c �r� CZ—.
General Counsel President
APPRO ED AS TO FORM:
By:
City Attorney
ATTEST:
City Clerk
THE NEWPORT BEACH COUI
a California Corporation
By
President
/1/ NOWWII /
CITY OF NEWPORT BEACH
a Municipal corporation
By:
'bly n er
STAR. X0.1
i •
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT is made and entered into this 14th day of November, 1996 by
and between the City of Newport Beach, a Municipal Corporation, hereinafter referred to as "City", and
the Newport Beach Country Club, Inc., a California corporation, hereinafter referred to as "User".
RECITALS
A. City and User entered into an Agreement, dated September 30, 1995 for the delivery
and sale of reclaimed water.
B. Paragraph 13(a) of the Agreement provides that the Agreement is conditioned upon
User and the Orange County Water District ( "OCWD ") executing by November 1, 1996 an agreement
regarding the design and construction of reclaimed water retrofit at User's golf course facility and a
loan agreement for the design, construction and retrofit of the User's irrigation system.
C. City and User entered into an Amendment to the Agreement to extend the deadlines in
paragraph 13(a)(i) and 13(a)(ii) to November 15, 1996. The Parties wish to extend the deadline a
second time to November 30, 1996.
NOW, THEREFORE, in consideration of the facts recited above and the terms, covenants and
conditions of this Amendment and the Agreement, the parties agree as follows:
1. The November 1, 1996 deadline in paragraph 13(a)(i) and 13(a)(ii) is hereby extended
to November 30, 1996.
IN WITNESS WHEREOF, the parties herein have executed this Amendment to Agreement as
of the date set forth above.
AS TO FORM:
Robert H. Burnham,
City Attorney
ATTEST:
r
LaVonne Harkless
City Clerk
fAcatldebbie\ag12dcdub.doc
CITY OF NEWPORT BEACH,
a Municipal corporation
4W4�IL
Ke in l Mur y
City Manager
THE NEWPORT BEACH COUNTRY CLUB,
a!�Ca�lifor�nia corporation
B��\ V�t�
Its: Vreside, t
AMENDMENT TO AGREEMENT
THIS AMENDMENT is made and entered into this Loa , day of October, 1996 by and between
the City of Newport Beach, a Municipal Corporation, hereinafter referred to as "City"., and the Newport
Beach Country Club, Inc., a California corporation, hereinafter referred to as "Uses".
RECITALS
A. City and User entered into an Agreement, dated September 30, 1995 for the delivery
and sale of reclaimed water.
B. Paragraph 13(a) of the Agreement provides that the Agreement is conditioned upon
User and the Orange County Water District ( "OCWD ") executing by November 1, 1996 an agreement
regarding the design and construction of reclaimed water retrofit at Users golf course facility and a
loan agreement for the design, construction and retrofit of the User's irrigation system. The parties
wish to extend the November 1, 1996 deadline to November 15, 1996.
NOW, THEREFORE, in consideration of the facts recited above and the terms, covenants and
conditions of this Amendment and the Agreement, the parties agree as follows:
1. The November 1, 1996 deadline in paragraph 13(a)(i) and 13(a)(ii) is hereby extended
to November 15, 1996.
IN WITNESS WHEREOF, the parties herein have executed this Amendment to Agreement as
of the date set forth above.
Robert H. Bu
City Attorney
AS TO FORM: CITY OF NEWPORT BEACH,
a Municipal corporation
rnham, Esq. evi J. Mur
City Manager
ElcaWslagrlarmrdga.doc
ATTEST:
LaVonne Harkless
City Clerk
THE NEWPORT BEACH
COUNTRY CLUB,
a California corporation
1
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AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT FOR DELIVERY AND SALE
OF RECLAIMED WATER TO THE NEWPORT BEACH CLUB
THIS AGREEMENT ( "Agreement ") is made and entered into this.30dday of
1996 by and between the City of Newport Beach, a Municipal Corporation,
hereinafter referred to as "CITY ", and The Newport Beach Country Club, Inc., a California
corporation, hereinafter referred to as "USER ".
RECITALS
A. 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 California 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.
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 to provide its
NBI.275995.V12
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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 and service line
which serves USER upstream of CITY's reclaimed water service meter vault, which
N81- 275995.V12 2 0912696
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 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 approved by the parties
and 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" as shown on Exhibit A -2 attached hereto (to be approved by the parties
and 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, at
no cost to USER, 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. Such
agreement will be approved by the parties and attached hereto within sixty (60) days
of the execution of this Agreement as Exhibit C.
NB1- 275895.V12 3 09126196
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In addition, within one hundred twenty (120) 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, provided USER has such information available. 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) the date of 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
prior to 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 pursuant to this Agreement, the incremental costs incurred to
comply with this Agreement.
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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
seventy (270) acre -feet. Project Water flow demands at the SITE's service shall not
exceed an instantaneous maximum flow of one thousand five hundred (1,500) 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 at the On -Site Facilities 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, so long as potable water is
concurrently made available to the SITE and its use does not perpetuate or create
additional hazards.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY covenants, represents and 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
NBI- 275995.V12 5 09!26!96
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 the SITE or any surrounding property including, without limitation,
USER's property and all plants and vegetation located thereon. Furthermore, CITY
covenants, represents and agrees that all Project Water delivered to USER pursuant to
this Agreement shall conform to the requirements set forth in Exhibit B attached
hereto (to be approved by the parties and 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 upon USER's demand, CITY will terminate the
flow of Project Water to the SITE within forty -eight (48) hours and concurrently with
such termination provide potable water in its place. USER shall have the right to
terminate this Agreement if the requirements described in this Paragraph 4 are not
met within thirty (30) days of any such flow termination. CITY understands and
acknowledges that even 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 Paragraph 3
above, any loss, cost, damage or expense resulting, directly or indirectly, from the
cessation or termination of service shall be borne by the 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 any
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 any material damage to USER's property or
grass, plants or other vegetation located thereon, which damage may include, without
limitation, 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 and, if USER and City
mutually agree, in good faith, a change to potable water is
NBI- 275995.Vi2 6 89/26/96
necessary, CITY shall cause an interim cessation in the flow of
Project Water and the concurrent provision of potable water in
its place.
(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
promptly remedy the problem. If USER has not previously
required a switch to use of potable water and 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 at such meeting CITY and USER are still unable to agree
whether a problem exists, CITY and USER shall together select
a mediator. Any mediator selected must have sufficient
education, knowledge and background in the use of reclaimed
water by golf courses to be able to comprehend the issues
presented for determination and to render a well reasoned
opinion to resolve the issues. If CITY and USER are unable to
select a mediator at such meeting, either party may proceed to
arbitration. If the parties agree upon a mediator, CITY and
USER shall then present their views to the mediator within ten
(10) days of the mediator's selection, and the mediator, within
three (3) days of hearing each party's views, shall decide
whether a problem exists. CITY and USER agree to be bound
by the mediator's decision; however, CITY and /or USER may
NBI- 275895.V]2 7 o9a6/96
pursue the matter through arbitration as provided in Section 18
hereof.
(6) If the mediator decides that a problem exists, the mediator shall
prescribe the course of action CITY must take to remedy the
problem. CITY must, within forty -eight (48) hours,
immediately thereafter commence to remedy the problem in the
manner prescribed. If CITY is unable to remedy the problem
within thirty (30) days of receipt by CITY of the prescribed
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 in subparagraphs (1)
or (3) 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 mediation procedure outlined above to
resolve such dispute.
Project Water shall be delivered at the Point of Connection on a continuous basis at a
pressure of not less than fifty pounds per square inch (50 psi) for demands under
fifteen hundred gallons per minute (1,500 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 monitor that the public does not come into contact with Project Water.
NBI- 275895.VI2 8 09!26196
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 total
cost to USER that does not exceed the cost to use 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 CITY'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 Project 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 of Project Water that would not have been incurred if it had used
potable water, the following steps shall be taken:
NBl•275895NI2 9 OMW96
Within six (6) months after the end of each two (2) year period of the term of this
Agreement, USER shall submit to CITY an itemized account of the costs expended
during the previous two (2) 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)
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 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 a location or locations satisfactory to USER 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
NBI- 275895. V 12 10 o9126/96
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 as such
change is consistent with formally adopted City -wide practices and procedures and
State law.
8. LEMTATION 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, represents and warrants to USER 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 now or hereafter 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.
NBI- 275895.V12 11 09/26/96
(c) The water quality requirements for Project Water during the term of
this Agreement will be defined in Exhibit B attached hereto (to be
approved by the parties and 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.
(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.
(g) 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.
(h) OCWD is not a party to any agreement between CITY and a user of
Project Water.
10. INDEMNIFICATION
CITY agrees to protect, indemnify, defend with counsel satisfactory to USER, save
and hold harmless USER, its lenders, ground lessors and each of their respective
NBl- 275895.VI2 12 09/26196
• r
directors, partners, participants, members, agents, contractors and employees free and
harmless from and against any and all loss, cost, obligation, liability, expense or
damage of any kind or nature and from any suits, actions, causes of action claims or
demands, including, without limitation, (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 or other property
affected, 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,
cost, liability, obligation, 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 also apply to
any 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,
action, 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. In addition to its other
obligations herein, 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
NB1- 275895.V12 13 09/26/96
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 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 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 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.
NBI- 275895. V 12 14 1)9126)96
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 home by CITY. CITY, at its sole cost and expense,
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 its use 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 1, 1996 that certain Agreement between Orange County
Water. District and The Newport Beach 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 The
Newport Beach 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
NBI- 275896.v12 15 09126196
following: (i) the transmission pipeline is extended to the Site; (ii)
OCWD makes Project Water available for sale; and (iii) 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
(iv) OCWD's acquiring by July 1, 1998, acceptable right -of -way access
from the Project Facilities to the SITE for transportation pipeline
purposes, and (v) 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
(b)(i), (ii), (iii), (iv) and (v) 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 continuously deliver Project Water through Project
Facilities for any reason, CITY shall provide USER with a minimum of seventy -two
(72) hours advance notice (except in the event of emergencies, in which event CITY
shall provide USER with as much prior notice as reasonably possible), that said
deliveries shall temporarily cease. CITY shall cooperate with USER in expediting all
permits and inspections as may be required for USER to convert to potable water use
during such cessation. CITY shall provide USER with a minimum of twenty -four
(24) hours advance notice when resumption of the delivery of Project Water to
NH1- 275895.V12 16 0926/96
USER's SITE is expected and shall cooperate with USER in expediting all permits
and inspections as may be required to convert back to use of Project Water. In the
event CITY is unable to deliver Project Water to USER or defaults under this
Agreement, CITY must contemporaneously provide USER with potable water at the
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 cancels or
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
whatsoever (other than expiration of the term pursuant to Section 16 below), as well
as converting back to the use of 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 date Project Water
is provided to the SITE. USER shall have the option to extend said initial term for
NBI- 275995.VI2 17 09/26/96
87.0 No.-!3>/ Y3
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; provided, however, no such
consent shall be necessary in the case of (i) an assignment to any lender holding a
first mortgage lien on USER's ground leasehold estate, or (ii) an assignment to
USER's ground lessor in the event of a termination of the ground lease.
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 promptly 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.
Net- 275995.V12 19 0926!%
(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:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: City Manager
USER: The Newport Beach Country Club, Inc.
1600 East Coast Highway
Newport Beach, CA 92660
Attention: Director of Golf
NB1- 275895.V12 19 09/26196
With a copy to: International Bay Clubs, Inc.
1221 West Coast Highway
Newport Beach, CA 92660
Attention: President
or such other address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete forty -eight (48) hours after
depositing the same in a United States mail depository.
20. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of CITY and USER and their respective successors and assigns.
21. TIME
Time is of the essence with respect to each and every provision hereof.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which when taken together shall constitute one and
the same document.
23. ESTOPPEL$
Each party hereto shall, upon not less than ten (10) days written notice from the other
party hereto, execute and deliver to such other party a statement certifying that this
Agreement is unmodified and in full force and effect (or, if modified, the nature of
the modification) and whether there are, to such party's knowledge, any uncured
defaults on the part of the other party, specifying such defaults if any are claimed.
NBI- 275895.V12 20 0926M
24. EXHIBITS
Each of the exhibits attached hereto is incorporated herein and made a part hereof for
all purposes.
25. SEVERABILITY
If any provision of this Agreement or its application to any party or circumstance
shall be determined by a court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement or the application of such provision to
such person or circumstance, other than to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision shall be valid and
shall be enforced to the fullest extent permitted by law.
26. WAIVER
No consent or waiver, express or implied, by any party to or of any breach or default
by the other in the performance by the other of its obligations hereunder shall be
deemed or construed to be a consent or waiver to or of any other breach or default in
the performance by such other party hereunder. Failure on the part of any party
hereto to complain of any act or failure to act by the other party or to declare such
other party in default hereunder, irrespective of how long such failure continues, shall
not constitute a waiver by such party of its rights hereunder.
27. EXECUTION OF OTHER DOCUMENTS
The parties hereto agree they will cooperate with each other and will execute and
deliver, or cause to be executed and delivered, such further instruments and
documents as well as to take such further actions as a party hereto shall reasonably
request from time to time in order to effectuate the purposes and provisions hereof.
NB1- 275895.V12 21 09/26/96
28. ATTORNEYS' FEES
If any proceeding or arbitration is brought by one party against the other to enforce,
interpret or for the breach of any of the provisions of this Agreement, in addition to
such other relief as may be granted, the prevailing party shall be entitled in such
proceeding or arbitration to recover its reasonable attorneys' fees together with the
cost of such proceeding or arbitration therein incurred.
29. MOST FAVORED NATION
CITY has advised USER that CITY is or shall in the future negotiate with other users
for the provision of Project Water to such other users. Notwithstanding any other
provision of this Agreement to the contrary, in the event the terms, covenants,
conditions and provisions of any other agreement entered into by CITY with any
other user of Project Water provided by OCWD are more beneficial, considering all
of the terms and provisions of the other agreement with such other user then the
provisions of this Agreement, CITY shall promptly notify USER of such provision
and the parties hereto shall modify this Agreement, at USER's election, to provide
USER with the same or better net benefit as that provided any other user of Project
Water.
NB1- r5895.V12 22 09126/96
IN WITNESS WHEREOF, the parties herein have executed this Agreement
as of the date set forth above.
APPROVED AS TO FORM:
City Attorney
CITY OF NEWPORT BEACH, a
municipal corporation
ATTEST:
LaVonne Harkless
City Clerk
THE NEWPORT BEACH COUNTRY
CLUB, a California corporation
By: asz�--
Its: PrasLCLC �4
NBI- 275895.VI2 23 09/26/96
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 THE NEWPORT
BEACH COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN ACRES
PROJECT WATER TO T WPORT BEACH COUNTRY CLUB" entered into this
�- day of 1 ae, , 1996, by and between the CITY of Newport
Beach, as the Retailer of Pr6ject Water, and The Newport Beach Country Club, as the USER
of Project Water, for delivery and sale of Project Water to The Newport Beach Country
Club, 1600 East Coast Highway, Newport Beach, CA, for landscape irrigation.
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
Cyr"' s00�
Clark Ide, Esq.
General Counsel
AX ZIA. aw /Z//
ME= R. Mills, Jr.
General Manager
NBI- 275895NI2
AO ®A,p , ,__
George Osborne
President
24 09/26/96
0
C]
SEP 2 3
TO: Mayor & Members of the City Council
FROM: Public Works Department
(3�>)
September 23, 1996
CITY COUNCIL AGENDA
ITEM NO. 8
SUBJECT: GREEN ACRES END -USER AGREEMENTS
RECOMMENDATIONS: `1C - -5c� J!�
Approve the End -User Agreements and authorize the Mayor and City Clerk
to execute the agreements with:
C r 3114- -1. Newport Mesa Unified School District ( NMUSD) - Corona del Mar High
School
C - 31 1 5 - 2. The Bluffs Homeowners Association (Bluffs)
C 1 (p -3. Big Canyon Country Club
C - 1'7 -4. Newport u lub
• DISCUSSION:
In July the City entered into an agreement with the Irvine Ranch Water District
(IRWD) and the Orange County Water District (OCWD) to build an intertie that
would allow IRWD reclaimed water to be transferred to the OCWD. This
intertie and the use of the IRWD reclaimed water by OCWD would eliminate the
need for the water to be discharged into the San Diego Creek which flows into
the Upper Newport Bay.
OCWD agreed to extend their Green Acres Project (GAP) pipeline into Newport
Beach to accept reclaimed water from the intertie if they could obtain a low
interest loan from the state. A condition for this loan requires that at least five
(5) reclaimed water users in Newport Beach commit to using GAP reclaimed
water. This commitment is to be in the form of an End -User Agreement.
At the August 14, 1995, meeting, the City Council authorized the execution of
End -User Agreements. Since that time and primarily in the last month, the
standard form End -User Agreement approved has been modified. Attached are
copies of the End -User Agreements with NMUSD - Corona del Mar High School,
The Bluffs Homeowners Association, Big Canyon Country Club and the
Newport Beach Country Club. A cover sheet is attached to each agreement
providing information on the modifications that were made.
• The fifth End -User is the City which will use GAP reclaimed water in the Bonita
Creek and East Bluff parks and possibly for the Jamboree Road medians.
Page 2
Green Acres Project End -User Agreements
September 23. 1996
To utilize reclaimed water for an irrigation system, it is necessary to retrofit the
existing system. The retrofit program maps 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 950/6
of the potable rate until the loan is paid back.
The NMUSD and The Bluffs have approved the agreements. It is anticipated
that the Big Canyon Country Club and the Newport Beach Country Club will
approve their agreements before the Council meeting.
STAFF RECOMMENDATION:
Staff recommends approval of the "End- User" agreements for
NMUSD and the Bluffs and requests approval for the Mayor and City Clerk to
execute these and the Big Canyon Country Club and Newport Beach Country
Club End -User Agreements on behalf of the City.
Respectfully submitted,
(;>k
PUBLIC WORKS DIRECTOR .
Don Webb, Director
By:
1,-.,
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.
is
0 r
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.
40
?1
r
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
S 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
s
0 0
GREEN ACRES
RECLAIMED WATER PROJECT •
END -USER AGREEMENT MODIFICATIONS
BIG CANYON COUNTRY CLUB
Added expanded indemnification clauses that cover Big
Canyon Country Club against any damages from the
reclaimed water use. The City has a similar clause with
the OCWD protecting ourselves against any damages.
• Minor changes with regards to quantity of water used and
time of use. .
• Modifications with regards to payment schedule.
City agrees to compensate for all permits costs, which
there should be none of.
• Monitoring clauses have been eliminated.
• Added an arbitration clause instead of Attorney's Fee's
and Expenses clause.
�1
C�
A *GREEME�T
GREEN ACRES RECLAIMED WATER PROJECT
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
NEWPORT -MESA UNIFIED SCHOOL DISTRICT
THIS AGREEMENT made and entered into as of _ September, 1996, by and
between the City Of Newport Beach, a Municipal Corporation and charter City, hereinafter
referred to as °City," and Newport-Mesa Unified School District, California Public School
District, hereinafter referred to as "User ".
RECITALS
1. The City is the exclusive retail water purveyor, including water for residential,
industrial, commercial, public agency, agricultural and other uses within the City's
boundaries, and produces and distributes water in part purchased from
Metropolitan Water District ( "MWD ") of Southern California and in part produced
from the Orange County ground water basin; the basin is managed by the Orange
County Water District ( "OCWD").
2. User is a California Public School District within the jurisdictional and service
boundaries of the City, and currently purchases potable water from the City for its
own use at Corona Del Mar High School (athletic fields only) hereinafter, referred
to as "Sites."
3. City has agreed to buy reclaimed water from OCWD and resell such reclaimed
water to various large volume water customers. OCWD operates a water
reclamation project known as the Green Acres Project ('GAP"). GAP is being
extended into the City's service area for the purpose of conserving and beneficially
reusing wastewater received by OCWD from the County Sanitation Districts of
Orange County, such wastewater having been treated, transported and sold by
OCWD as "GAP Water" to the City to be resold to Users. GAP Water is suitable for
use in landscape and agricultural irrigation, and industrial and construction
purposes, in lieu of potable water.
4. User desires to purchase GAP water from the City for allowable, suitable
nonpotable uses, specifically, for landscape irrigation, in lieu of potable water
currently purchased from the City.
5. The City is willing to sell GAP water to User.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions herein contained, the parties hereto.agree as follows:
C�
GAP End -User Agreemgnt
*ewport-Mesa Unified School District
September, 1996
1. TRANSMISSION PIPELINE FACILITY
A transmission pipeline will be constructed by OCWD as part of GAP, that will convey
GAP water to various locations within the City boundaries, including the Site. All
GAP water will originate from the Green Acres Project Water Treatment Facility,
located at the offices of OCWD at 10500 Ellis Avenue, Fountain Valley, California.
OCWD owns the main transmission pipeline facility and service line which serves
User upstream of the City's reclaimed water service meter vault. The OCWD pipeline
facility and service lines shall be referred to herein as "Project Facilities." City owns,
operates and maintains all reclaimed water service meter vault piping, by -pass line
piping, service meter vault, service meter and control valves, collectively hereinafter
such facilities shall be referred to as "City Facilities." User owns and maintains the
pipeline, (e.g., pressure regulator, pressure regulator vault, control valve, control
valve vault, check valve, warning signs, warning tags, etc.) and all appurtenances
downstream of the City's reclaimed water service meter vault, hereinafter such
facilities shall be referred to as "On -Site Facilities." The point where User's piping
connects to downstream end of the City's reclaimed water service meter vault shall
hereinafter be referred to as the "Point of Connection." That portion of the Project
Facilities and City Facilities located within the City's boundaries will be operated and
maintained by the City as a contractor for OCWD for the purpose of distributing GAP
water to be purchased from the City by User. User shall also own and maintain all
devices on User's Site potable water system including, but not limited to, (drinking
fountain covers, backflow preventers, identification tags, etc.)
2. RULES AND REGULATIONS •
User agrees that during the term of this Agreement and any extension thereof, User
shall comply with all rules and regulations promulgated now and in the future by the
City relative to the sale and use of GAP water and those rules and regulations
promulgated now and in the future by OCWD relative to the transportation and use of
GAP water, hereinafter referred to as "Project Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
The City agrees to supply GAP water to User, and User agrees to purchase, on an
annual basis, thirty (30) acre -feet, as a minimum, , which is based on fifty (50)
percent of the average annual use at the Site. GAP water flow demands to the Site
shall not exceed an instantaneous maximum flow of three hundred and twenty (320)
gallons per minute By entering into this Agreement, the City's performance of this
Agreement shall at all times be conditioned upon the continuous operation of the
Project Facilities by OCWD. To the extent that User's current use of its property
necessitates the use of GAP water, User will continue to purchase GAP water. In the
event that the current use of the property discontinues or is modified, User may
modify or terminate this Agreement as applicable, subject to the conditions set forth
in Section 13 of this Agreement.
Page 2 of 11
0
C,
J
GAP End -User Agreement
Sewport-Mesa Unified School District
September, 1996
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, the City reserves the
right, and has the authority, to take action to insure that the situation shall be
remedied, and to protect the public health, as further set forth in the Project Rules.
Such remedies may include, but shall not be limited to, the right of the City to
terminate GAP water service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
The City agrees, subject to compliance by OCWD, that all GAP water delivered to
User from the Project Facilities pursuant to this Agreement shall conform to the
current and future requirements established by the California Regional Water Quality
Control Board - Santa Ana Region, state and local health departments, and federal,
state and county agencies, hereinafter referred to as "Regulatory Agencies," having
jurisdiction to fix minimum standards for the quality of water, with respect to User's
anticipated use.
GAP water shall be delivered on a continuous basis at a pressure of not less than
sixty pounds per square inch (60 psi) for the Site at the Point of Connection between
the hours of 9:00 p.m. and 6:00 a.m. User shall not exert demand for GAP water
between the hours of 6:00 a.m. and 9:00 p.m without User's trained maintenance
personnel or designated representative being present.
. 5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by User for GAP water delivered
by the City shall not exceed eighty percent (80 %) of the City's retail rate for potable
water, as established by resolution of the City Council and enforced on the date of
delivery of GAP water. The retail rate for potable water shall be subject to
modification as determined by and within the discretion of the City Council, At least
10 days prior to the adoption of a resolution establishing the water rate of the City
and /or modifying the purchase price of GAP water, the City shall give written notice to
User of a hearing on the resolution and price which shall apply following adoption of
said resolution. Failure to give notice shall not invalidate the action of the City
Council.
•
6. METERING AND MEASUREMENT OF FLOWS
User agrees that at locations where irrigation water is used exclusively, the City shall
maintain, at its own expense, control valves and meters (sized at four - inches (4"j) 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
E
7. PAYMENT FOR PROJECT WATER
The City shall invoice User for the price
other month, as part of the City's regula r
within thirty (30) days of the billing date.
8. LIMITATION OF USE
GAP End -User Agreement
0ewport-Mesa Unified School District
September. 1996
of the GAP water purchased by User every
billing cycle. Said invoices shall be paid
User understands and agrees that GAP water delivered from OCWD's Project
Facilities pursuant to the terms hereof has restricted uses, and User agrees to use
such only upon the property of User and only for those uses and purposes provided
for herein which are legally permissible under the laws of the state, the Project Rules
and rules adopted by the City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD and User obtaining the necessary permits
relating to the use of GAP water for landscape irrigation. User agrees to file any and
all applications and undertake such proceedings as may be necessary to enable
OCWD, the City and User to carry out the undertaking described herein, and to
pursue such application and proceedings in good faith and with due diligence,
including any application required to be issued to OCWD by Regulatory Agencies.
User understands and agrees that User, where applicable, will comply with the
regulations set forth in permits and any fees will be paid for by the City or OCWD.
10. 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
GAP water delivery is expected at User's Site. In the event the Clb
provide delivery of GAP water, the City will provide water to User frc
sources at the full potable water rate, subject to the right of the City
allocation of all water, both GAP and potable, in the event of
Furthermore, in the event that OCWD ceases producing and distributinc
Page 4 of 11
resumption of
r is unable to
>m alternative
to determine
emergencies.
I GAP water
•
0
•
. GAP End -User Agreement
Qwport-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.
0
Page 5 of 11
l ��
r
GAP End -User Agreement
Sewport-Mesa Unified School District
September, 1996
If User is sued for damages by reason of any of the acts, omissions or activities for
which City is required to indemnify User pursuant to this Section, City shall defend
the action at its own expense and shall pay any judgment that may be rendered. In
the event City fails or neglects to defend User in the Action, User may defend the
action and any expenses, including reasonable attorneys' fees and cost which User
pays or incurs in defending the action, and the amount of any judgment which User
may be required to pay, shall be promptly reimbursed by City upon demand.
The indemnification, defense and hold harmless obligations of City specified in this
Section do not extend to damages, losses, injuries, lawsuits or claims resulting from
the acts or omissions of User or its officers, agents, representatives and employees.
16. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or other
proceeding against the other party arising out of or relating to the subject matter of
this Agreement, its validity or any of the terms or provisions thereof, then the
prevailing party in such action, suit, arbitration or other proceeding shall recover from
the other party its reasonable attorneys' fee costs incurred in connection therewith, in
addition to any other relief to which it may be entitled. Said attorneys' fees shall
include such fees for prosecuting or defending any appeal and shall be recoverable,
and awarded for any supplemental proceedings until the final judgment is satisfied in
full.
17. NOTICES .
All notices, payments, transmittals of documentation and other writings required or
permitted to be delivered or transmitted to either of the parties hereto under this
Agreement shall be personally served or deposited in the United States mail
depository first class postage prepaid, and addressed as follows:
City: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Don Webb
Public Works Director
User: Newport-Mesa Unified School District
2985 -A Bear Street
Costa Mesa, CA 92626
Attention: Carolyn B. Stocker, Executive Director
Business Services & Auxiliary Operations
Page 6 of 11
1�
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.
0
y� Page 7 of 11
GAP End -User Agreement
Qewport-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 Ciauson
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
•
•
0
• ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
0
11
GAP End -User Agreement
, ewport-Mesa Unified School District
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT -MESA
UNIFIED SCHOOL DISTRICT REGARDING DELIVERY AND SALE OF GREEN ACRES
PROJECT WATER AT CORONA DEL MAR HIGH SCHOOL (ATHLETIC FIELDS ONLY)
entered into as of _ September, 1996, by and between the City of Newport Beach, as the
Retailer of GAP Water, and Newport-Mesa Unified School District, as the User of GAP
Water, for delivery and sale of GAP Water to Corona Del Mar High School (athletic fields
only) , Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel
de \09 -17 -96 \2:20
President
General Manager
Page 9 of 11
f� r
• •
AGREEMENT
GREEN ACRES RECLAIMED WATER PROJECT .
END -USER AGREEMENT
FOR DELIVERY AND SALE OF RECLAIMED WATER TO
THE BLUFFS HOMEOWNERS ASSOCIATION
THIS AGREEMENT is made and entered into as of _ September, 1996 by and
between the City Of Newport Beach, a Municipal Corporation and charter City, hereinafter
referred to as "City," and the Bluffs Homeowners Association, a Private Corporation,
hereinafter referred to as "User."
RECITALS
1. The City is the exclusive retail water purveyor, including water for residential,
industrial, commercial, public agency, agricultural and other uses within the City's
boundaries, and produces and distributes water in part purchased from
Metropolitan Water District ( "MWD") of Southern California and in part produced
from the Orange County ground water basin; the basin is managed by the Orange
County Water District ( "OCWD ").
2. User is a private corporation within the jurisdictional and service boundaries of the
City, and currently purchases potable water from the City for its own use within the •
common areas of the Bluffs Greenbelt, Newport Beach, California, hereinafter,
referred to as "Site."
3. City has agreed to buy reclaimed water from OCWD and resell such reclaimed
water to various large volume water customers. OGWD 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:
•
• GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
• 1. TRANSMISSION PIPELINE FACILITY
A transmission pipeline will be constructed by OCWD as part of GAP, that will convey
GAP water to various locations within the City boundaries, including the Site. All GAP
water will originate from the Green Acres Project Water Treatment Facility, located at
the offices of OCWD at 10500 Ellis Avenue, Fountain Valley, California. OCWD
owns the main transmission pipeline facility and service line which serves User
upstream of the City's reclaimed water service meter vault. The OCWD pipeline
facilities and service lines shall be referred to herein as "Project Facilities." . City
owns, operates and maintains all reclaimed water service meter vault piping, by-
pass line piping, service meter vault, service meter and control valves, collectively
hereinafter such facilities shall be referred to as "City Facilities." User owns and
maintains the pipeline, (e.g., pressure regulator, pressure regulator vault, control
valve, control valve vault, check valve, warning signs, warning tags, etc.) and all
appurtenances downstream of the City's reclaimed water service meter vault,
hereinafter such facilities shall be referred to as "On -Site Facilities." The point where
User's piping connects to downstream end of the City's reclaimed water service
meter vault shall hereinafter be referred to as the "Point of Connection." That portion
of the Project Facilities and City Facilities located within the City's boundaries will be
operated and maintained by the City as a contractor for OCWD for the purpose of
distributing GAP water to be purchased from the City by User. User shall also own
and maintain all devices on User's Site potable water system including, but not
limited to, drinking fountain covers, backflow preventers, identification tags, etc.
• 2. RULES AND REGULATIONS
User agrees that during the term of this Agreement and any extension thereof, User
shall comply with all rules and regulations promulgated now and in the future by the
City relative to the sale and use of GAP water and those rules and regulations
promulgated now and in the future by OCWD relative to the transportation and use of
GAP water, hereinafter referred to as "Project Rules.°
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
The City agrees to supply GAP water to User, and User agrees to purchase GAP
water. The anticipated average annual GAP water usage at Site is estimated to be
one hundred sixty (160) acre -feet. GAP water flow demands to the Site's three
services (1720 S. Vista Del Oro, 2052 S. Vista Del Oro, and 2150 S. Vista Del Oro)
shall not exceed an instantaneous maximum combined flow of nine hundred and
sixty (960) gallons per minute from the three meters. By entering into -this
Agreement, the City's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD. To the
extent that User's current use of its property necessitates the use of GAP water, User
will continue to purchase GAP water. In the event that the current use of the property
discontinues or is modified, User may modify or terminate this Agreement as
applicable, subject to the conditions set forth in Section 13 of this Agreement.
Page 2 of 9
,�71
• GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence .of a hazard, are found to exist, the City reserves the
right, and has the authority, to take action to insure that the situation shall be
remedied, and to protect the public health, as further set forth in the Project Rules.
Such remedies may include, but shall not be limited to, the right of the City to
terminate GAP water service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
The City agrees, subject to compliance by OCWD, that all GAP water delivered to
User from the Project Facilities pursuant to this Agreement shall conform to the
current and future requirements established by the California Regional Water Quality
Control Board - Santa Ana Region, state and local health departments, and federal,
state and county agencies, hereinafter referred to as "Regulatory Agencies," having
jurisdiction to fix minimum standards for the quality of water, with respect to User's
anticipated use.
GAP water shall be delivered on a continuous basis at a pressure of not less than
sixty pounds per square inch (60 psi) at the Point of Connection between the hours
of 9:00 p.m. and 6:00 a.m. User shall not exert demand for GAP water between the
hours of 6:00 a.m. and 9:00 p.m., without User's trained maintenance personnel or
designated representative being present.
5. PRICE OF PROJECT WATER .
For the term of this Agreement, the price to be paid by User for GAP water delivered
by the City shall not exceed eighty percent (80 %) of the City's retail rate for potable
water, as established by resolution of the City Council and enforced on the date of
delivery of GAP water. The retail rate for potable water shall be subject to
modification as determined by and within the discretion of the City Council. At least
10 days prior to the adoption of a resolution establishing the water rate of the City
and /or modifying the purchase price of GAP water, the City shall give written notice to
User of a hearing on the resolution and price which shall apply following adoption of
said resolution. Failure to give notice shall not invalidate the action of the City
Council.
6. METERING AND MEASUREMENT OF FLOWS
User agrees that at locations where irrigation water is used exclusively, the City shall
maintain, at its own expense, a control valve or valves and two (2) four -inch (4 ")
meters and one (1) six -inch (6 ") meter for the purpose of measuring the quantity of
GAP water delivered pursuant to the terms of this Agreement from the City to User at
the Point of Connection where such water is delivered to User. The City shall read
the service meters and record GAP water usage for User on a monthly basis. OCWD
shall be given access to said service meters to take readings.
Page 3 of 9
'f ( j
s
0
•
�i
• GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
7. PAYMENT FOR PROJECT WATER
The City shall invoice User for the price
other month, as part of the City s regula r
within thirty (30) days of the billing date.
8. LIMITATION OF USE
of the GAP water purchased by User every
billing cycle. Said invoices shall be paid
User understands and agrees that GAP water delivered from OCWD's Project
Facilities pursuant to the terms hereof has restricted uses, and User agrees to use
such only upon the property of User and only for those uses and purposes provided
for herein which are legally permissible under the laws of the state, the Project Rules
and rules adopted by the City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD and User obtaining the necessary permits
relating to the use of GAP water for landscape irrigation. User agrees to file any and
all applications and undertake such proceedings as may be necessary to enable
OCWD, the City and User to carry out the undertaking described herein, and to
pursue such application and proceedings in good faith and with due diligence,
including any application required to be issued to OCWD by Regulatory Agencies.
User understands and agrees that User, where applicable, will comply with the
regulations set forth in permits and any fees will be paid for by the City or OCWD.
10. MONITORING
The City's responsibility for managing and monitoring the GAP water produced and
delivered hereunder shall cease upon delivery to User at the Point of Connection.
Managing and monitoring with respect to the storage and distribution of GAP water
under the control of User shall be the responsibility of User. User further agrees to
allow the City, Regulatory Agencies and/or OCWD's representatives to enter User's
Site for monitoring, sampling, analysis and observation of User's On -Site Facilities.
User understands and agrees that groundwater,underlying the Site may also need to
be monitored for quality. User and OCWD shall locate a mutually agreeable place
on the Site to construct a groundwater monitoring well as required by Regulatory
Agencies. At no expense to the City or OCWD, User shall provide easement(s) to
OCWD to construct, at no expense to the City or User, a groundwater monitoring well
on the Site. User shall provide OCWD with access to such monitoring well for the
purpose of carrying out all groundwater monitoring activities. .
11. CONDITIONS PRECEDENT
This Agreement is conditioned upon OCWD's completing and making GAP
operational, including: (1) transmission pipeline extension to User; (2) OCWD
making GAP water available for sale; and (3) issuance of all necessary permits,
Page 4 of 9
GAP End -User Agreement
*Bluffs Homeowners Association
September, 1996
certificates and approvals by all Regulatory Agencies having jurisdiction over the •
construction and operation of water reclamation facilities and over the production,
distribution, sale and use of GAP water. This Agreement is conditioned further upon
OCWD's being able to acquire acceptable right -of -way access from the Project
Facilities to the Site for transportation pipeline purposes, and is further conditioned
upon approval by Regulatory Agencies or agencies having grant funding
responsibilities with regard to the Project Facilities.
12. CONDITIONS SUBSEQUENT
In the event that the City is unable to deliver GAP water through Project Facilities, the
City reserves the right to notify User a minimum of 24 hours advance notice, except
in the event of emergencies, that said deliveries shall temporarily cease. The City
shall provide User with a minimum of 24 hours advance notice. when resumption of
GAP water delivery is expected at User's Site. In the event the City is unable to
provide delivery of GAP water, the City will provide water to User from alternative
sources at the full potable water rate, subject to the right of the City to determine
allocation of all water, both GAP and potable, in the event of emergencies.
Furthermore, in the event that OCWD ceases producing and distributing GAP water
or in the event that the treatment criteria imposed by any Regulatory Agency exceeds
those existing as of the date of this Agreement, the City shall have the option of
canceling this Agreement. The City shall convert service on the Site back to a
potable water system(s) at no expense to User if this Agreement is canceled by the
City within fifteen (15) years immediately following the date hereof. The cost of •
conversion back to a potable water system shall be borne by User if said conversion
occurs after fifteen (15) years from the date of this Agreement.
13. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of GAP water from the
Green Acres Project beyond that usable by User. The City reserves the right to enter
into contracts with others for the sale of any GAP water.
14. TERM
The term of this Agreement shall be fifteen (15) years from the day of first use of GAP
water at Site. The parties do hereby agree that any portion of this Agreement may be
revised by written amendment at any time by mutual agreement of the parties hereto.
The parties do hereby also agree that one (1) year prior to the end of the term of this
Agreement, all of the terms herein shall be reviewers, and if all of the terms are
mutually agreed upon following such review, this Agreement shall be renewed.
15. ASSIGNMENT
This Agreement and the rights and benefits of the City hereunder may be assigned
and transferred by the City to any entity which assumes the responsibilities and
obligations of the City for the sale and distribution of GAP water to the User.
•
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• 16. INDEMNIFICATION
GAP End -User Agreement
lulls 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
e 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.
Page 7 of 9
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WITNESS WHEREOF, the parties herein have executed this Agreement as of the
date set forth above.
APPROVED AS TO FORM:
City of Newport Beach,
a municipal corporation
Robin Clauson John Hedges
Assistant City Attorney Mayor
ATTEST: The Bluffs Homeowners Association
a private corporation
LaVonne Harkless Ron Foster
City Clerk President
Robert Orman
Secretary
Page 8 of 9
GAP End -User Agreement
Bluffs Homeowners Association
September, 1996
ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE BLUFFS
HOMEOWNERS ASSOCIATION REGARDING DELIVERY AND SALE OF GREEN ACRES
PROJECT WATER WITHIN THE COMMON AREAS OF THE BLUFFS GREENBELT'
entered into as of _ September, 1996 by and between the City of Newport Beach, as
the Retailer of GAP Water, and The Bluffs Homeowners Association, as the User of GAP
Water, for delivery and sale of GAP Water to The Bluffs Homeowners Association for use
within the common areas of the Bluffs Greenbelt, Newport Beach, CA, for landscape
irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
•
General Counsel President
General Manager ,
de \09 -04 -96 \3:15
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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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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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• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
• 2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be
referred to as "Project Rules." In the event that CITY and /or OCWD or any other
governmental agency shall promulgate any rule or regulation that shall
increase above the potable rates, the cost of USER's transportation and/or use
of Project Water as contemplated herein, USER may terminate this Agreement,
upon sixty (60) day notice to CITY and as set forth in Section 14 of this
Agreement.
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
CITY agrees to supply Project Water to USER, and USER agrees to purchase
Project Water. Average annual Project Water usage at Site is estimated to be
three hundred and sixty (360) acre -feet, Project Water flow demands at the
SITE's service shall not exceed an instantaneous maximum flow of two
thousand two hundred (2,200) gallons per minute. By entering into this
• Agreement, CITY's performance of this Agreement shall at all times be
conditioned upon the continuous operation of the Project Facilities by OCWD.
In the event that the current use of the property discontinues or is modified,
USER may modify or terminate this Agreement, as applicable, subject to the
conditions set forth in Section 14 of this Agreement.
If at any time during construction or operation of the On -Site Facilities, real or
potential hazards, or evidence of a hazard, are found to exist, CITY reserves the
right, and has the authority, to take action to insure that the situation be
remedied and to protect the public health, as further set forth in the Project
Rules. Such remedies may include, but shall not be limited to, the right of CITY
to terminate Project Water service to SITE.
4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE
CITY agrees, subject to' compliance by OCWD, that all PROJECT Water
delivered to USER from the Project Facilities pursuant to this Agreement shall
conform to (1) 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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• GAP End -User Agreement
Big Canyon Country Club
September, 1996
standards, set by Regulatory Agencies as will prevent the Project Water from
causing any damage to USER's property and all plants and vegetation located
thereon. If the Project Water fails to conform to the above requirements, CITY
and OCWD covenants that CITY will terminate the flow of Project Water to the
SITE and provide potable water in its place, and USER may terminate this
Agreement if standards are not met within sixty (60) days.
CITY acknowledges that excess water from USER irrigation operations and
from lakes on the SITE drain into the Upper Newport Bay, and that once USER
begins to use Project Water for irrigation purposes, any excess Project Water
will drain into the Upper Newport Bay as well. CITY covenants to indemnify
USER for those costs and expenses arising out of any modification or
termination of USER's right to allow its excess water to drain into the Upper
Newport Bay when the modification or termination is ordered because of
USER's use of Project Water as contemplated herein.
Project Water shall be delivered on a continuous basis at a pressure of not less
than ninety pounds per square inch (90 psi) for demands under thirteen
hundred gallons per minute (1,300 gpm), and not less than eighty pounds per
square inch (80 psi) for demands from thirteen hundred one gallons per minute
(1,301 gpm) to two thousand two hundred gallons per minute (2,200 gpm) at the
Point of Connection between the hours of 9:00 p.m. to 6:00 a.m. USER shall not
exert a demand for Project Water between the hours of 6:00 a.m. and 9:00 p.m. .
unless USER's staff is present to ensure that the public does not come in
contact with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by USER for Project Water
delivered by CITY shall not exceed the lower of (a) eighty percent (80 %) of the
CITY's retail rate for potable water, as established by resolution of the City
Council and enforced on the date of delivery of the Project Water, or (b) the.
lowest rate then offered by CITY to any purchaser of reclaimed water, whether
such rate is determined as a percentage of CITY's retail rate for potable water or
otherwise. The retail rate for potable water shall be subject to modification as
determined by and within the discretion of the City Council. At least ten (10)
days prior to the adoption of a resolution establishing the water rate of CITY
and/or modifying the purchase price of Project Water, CITY shall provide notice
as prescribed in the City Municipal Code of a public hearing on the resolution
and price which shall apply following adoption of said resolution. Failure to
give notice shall not invalidate the action of the City Council.
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• • GAP End -User Agreement
Big Canyon Country Club
September, 1996
0 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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GAP End -User Agreement
Big Canyon Country Club
September, 1996
(d) CITY will provide USER with all engineering support requested by
USER, including the assistance of CITY engineers, and other staff, to
assist in the review of USER's irrigation system redesign for the purposes
contemplated herein.
(e) At CITY's cost, CITY will make presentations to USER, USER's club
members and related homeowners' associations with respect to the
Green Acres Project and Project Water.
(f) CITY acknowledges and agrees that USER may use potable water to
irrigate putting greens, the perimeter of selected fairways located
adjacent to residences, and elsewhere on the SITE as agreed to by
USER and CITY and within acceptable State Health Department
standards.
10. INDEMNIFICATION
CITY agrees to protect, indemnify, defend, save and hold harmless USER, its
directors, agents and employees from and against any and all loss, liability,
expense or damage of any kind or nature and from any suits, claims or
demands, including (i) all consequential damages; (ii) all damages to any
natural resources, and the costs of any required or necessary repair, clean up,
response cost, or detoxification of the SITE or any portion thereof, and the
preparation and implementation of any closure, remedial or other required
plans; and (iii) all costs and expenses incurred in connection with clauses (i) •
and (ii), including all attorneys' fees and expenses, whether in suit or not, which
arise directly or indirectly out of (x) the use by USER of the Project Water as
contemplated herein, (y) the existence or alleged existence of any Hazardous
Substances (as defined below) in the Project Water or (z) the removal of or
failure to remove any Hazardous Substances from the Project Water unless
such suit, claim or demand is caused by the negligence or willful misconduct of
USER, its directors, agents and employees, the negligent operation,
maintenance or repair by USER of Project Water distribution and on site
facilities; or USER's reuse or misapplication of Project Water on the Site. The
foregoing indemnity shall apply to any residual contamination on, under or
about the SITE and to any contamination of any property or natural resources
arising from the Project Water.
Upon receiving knowledge of any suit, claim or demand asserted by a third
party that USER believes is covered by this indemnity, USER shall give CITY
and OCWD notice of the matter and an opportunity to defend it, at CITY's and
OCWD's cost and expense, with legal counsel satisfactory to USER. USER
may also require CITY and OCWD to so defend the matter. CITY and OCWD
will pay all fees or penalties imposed by any Regulatory Agency or any other
governmental authority for any violation of any code, regulation or law with
respect to the transportation, use or chemical composition of the Project Water. 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.
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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 borne by USER if said conversion occurs after the initial term of this
Agreement.
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15. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
16. TERM
The term of this Agreement shall be ten (10) years from the day and year first
above written. USER shall have the option to extend said term for two (2)
additional ten (10) year terms, provided that USER gives CITY written notice of
such election at least six (6) months prior to the expiration of the previous term.
The parties do hereby agree that any portion of this Agreement may be revised
by written amendment at any time by mutual agreement of the parties hereto.
17. ASSIGNMENT
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without written consent from CITY and OCWD, which consent shall not
be unreasonably withheld.
18. ARBITRATION
(a) CITY, OCWD and USER hereby agree that all controversies and claims
arising directly or indirectly out of this Agreement shall at the written
request of any party be arbitrated pursuant to the applicable rules of the
American Arbitration Association. The arbitration shall occur in the State
of California. Judgment upon any award rendered by the arbitrator(s)
may be entered in any court having jurisdiction. The Federal Arbitration
Act shall apply to the construction and interpretation of this arbitration
agreement.
(b) A single arbitrator shall have the power to render a maximum award of
one hundred thousand dollars. When any party files a claim in excess of
this amount, the arbitration decision shall be made by the majority vote of
three arbitrators. No arbitrator shall have the power to restrain any act of
any party.
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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.
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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
CITY OF NEWPORT BEACH,
a municipal corporation
John Hedges
Mayor
BIG CANYON COUNTRY CLUB
a private corporation
General Manager
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ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
• GAP End -User Agreement
Big Canyon Country Club
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby. consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND BIG CANYON
COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN ACRES PROJECT
WATER AT BIG CANYON COUNTRY CLUB" entered into this day of
, 1996, by and between the CITY of Newport Beach, as the Retailer
of Project Water, and Big Canyon Country Club, as the USER of Project Water, for
delivery and sale of Project Water to Big Canyon Country Club, One Big Canyon Drive,
Newport Beach, CA, for landscape .irrigation.
APPROVED AS TO FORM ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel
F:\cat \debbie \ag\bigcan.doc
09 -16 -96
President
General Manager
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AGREEMENT
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
IsCITY, and currently purchases potable water from CITY for its own use at The
Newport Beach Country Club, 1600 East Coast Highway, Newport Beach,
California, hereinafter, referred to as "SITE ".
3. CITY has agreed to buy reclaimed water from OCWD and resell such reclaimed
water pursuant to the terms and conditions specified in that certain agreement
entitled "Agreement Between Orange County Water District and City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water" dated
January 16, 1991, and as it may be subsequently amended, hereinafter
referred to as "Retailer Agreement." City executed the Retailer Agreement for
the purpose of seeking to provide its present and future residents with a
supplemental source of water to meet their needs and to assist in the statewide
objective of conserving and utilizing to the maximum degree possible the water
of the People of the State of California, which water shall be recovered from the
operation known as the "Green Acres Project" for all possible beneficial uses.
4. The Green Acres Project is being planned for extension into CITY's service area
for the purpose of conserving and beneficially reusing wastewater from the
County Sanitation Districts of Orange County or the Irvine Ranch Water District,
( "IRWD "), such wastewater having been treated by OCWD or IRWD to standards
established by the State Health Department and transported and sold by
• OCWD as "Project Water" to CITY to be resold to Project Customers.
• • GAP End -User Agreement
Newport Beach Country Club
September, 1996
5. USER desires to purchase Project Water from CITY for allowable, suitable
nonpotable uses, specifically landscape irrigation of its golf course and certain •
related facilities, in lieu of potable water currently purchased from CITY, and
CITY is willing to sell Project Water to USER.
NOW THEREFORE, in consideration of the facts recited above and the terms,
covenants and conditions of this Agreement, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline as part of the'Green
Acres Project that will convey Project Water to various locations within CITY
boundaries, including the SITE. All Project Water will originate from either the
OCWD Green Acres Project Water Treatment Facility, or a similar facility
operated by IRWD. OCWD owns the main transmission pipeline facility and
service line which serves USER upstream of CITY's reclaimed water service
meter vault, which facility and line shall hereinafter be referred to as "Project
Facilities ". CITY owns, operates and maintains all reclaimed water service
meter vault piping, by -pass line piping, service meter vault, service meter and
control valves, which facilities shall hereinafter be referred to collectively as
"City Facilities." USER owns and maintains the pipelines, pump station,
backflow preventers, warning signs, warning tags and all appurtenances
downstream of CITY's reclaimed water service meter vault, which facilities shall
hereinafter be referred to as "On -Site Facilities" and are more fully set forth on
the drawings attached hereto as Exhibit A. The point where USER's piping
connects to the downstream end of CITY's reclaimed water service meter vault
shall hereinafter be referred to as the "Point of Connection ". That portion of the
Project Facilities and City Facilities located within CITY's boundaries will be
operated and maintained by CITY as a contractor for OCWD for the purpose of
distributing Project Water to be purchased from CITY by USER. USER shall
also own and maintain all devices on USER's Site potable water system
including, but not limited to, (drinking fountain covers, backflow preventers, air -
gaps and lake fills, identification tags, etc.)
2. RULES AND REGULATIONS
USER agrees that during the term of this Agreement and any extension thereof,
USER shall comply with all rules and regulations promulgated now and in the
future by CITY relative to the sale and use of Project Water and those rules and
regulations promulgated now and in the future by OCWD relative to the
transportation and use of Project Water, which rules shall hereinafter be
referred to as "Project Rules." In the event that CITY and/or OCWD or any other
governmental agency shall promulgate any rule or regulation that shall
increase above the potable rates, the cost of USER's transportation and/or use
of Project Water as contemplated herein, USER may terminate this Agreement,
upon thirty (30) day notice to CITY and as set forth in Section 14 of this .
Agreement.
Page 2 of 12
•
3. QUANTITY OF WATER TO BE PURCHASED BY USER;
INSTANTANEOUS MAXIMUM FLOW
GAP End -Us or Agreement
Newport Beach Country Club
September, 1996
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
•
i GAP End -User Agreement
Newport Beach Country Chub
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.
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Page 4 of 12
. GAP End -User Agreement
Newport Beach Cointry Qib
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.
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Page 5 of 12
10
• GAP End -User Agreement
Newport Beech Country 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 attorneys' fees and expenses, whether in suit or not, which
arise directly or indirectly out of (x) the use by USER of the Project Water as
contemplated herein, (y) the existence or alleged existence of any Hazardous
Substances (as defined below) in the Project Water or (z) the removal of or
failure to remove any Hazardous Substances from the Project Water unless,
such suit, claim or demand is caused by the negligence or willful misconduct of
USER, its directors, agents and employees, the negligent operation,
maintenance or repair by USER of Project Water distribution and on site
facilities; or USER's misuse or misapplication of Project Water on the Site. The
foregoing indemnity shall apply to any residual contamination on, under or
about the SITE and to any contamination of any property or natural resources
arising from the Project Water.
Upon receiving knowledge of any suit, claim or demand asserted by a third •
party that USER believes is covered by this indemnity, USER shall give CITY
notice of the matter and an opportunity to defend it, at CITY's cost and expense,
with legal counsel satisfactory to USER. USER may also require CITY to so
defend the matter. CITY will pay all fees or penalties imposed by any
Regulatory Agency or any other governmental authority for any violation of any
code, regulation or law with respect to the transportation, use or chemical
composition of the Project Water. The obligations of CITY under this
Section 10 shall survive the term(s) of this Agreement.
As used herein, 'Hazardous Substances" shall mean (i) any chemical,
compound, material, mixture or substance that is now or hereafter defined or
listed in, or otherwise classified pursuant to, any Environmental Law (as defined
below) as a "hazardous substance ", "hazardous material ", "hazardous waste ",
"contaminant" or any other formulation not mentioned herein intended to define,
list, or classify substances by ' reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity,
"EP toxicity" or "TCLP toxicity "; and (ii) any other chemical, material, or
substance that, because of its quantity, concentration, or physical or chemical
characteristics, exposure to which is limited or regulated for health and safety
reasons by any governmental authority, or which poses a significant present or
potential hazard to human health and safety or to the environment if released
into the workplace or the environment. "Environmental Law" shall mean shall
mean any and all present and future Federal, state and local laws (whether
Page 6 of 12
GAP End-User Agreement
Newport Beach Courtry Club
September, 1996
• under common law, statute or otherwise), ordinances, regulations, permits,
guidance documents, policies, and any other requirements of governmental au-
thorities relating to health, safety, the environment or to any Hazardous
Substances.
11. PERMITS
This Agreement is conditioned upon OCWD and CITY obtaining the necessary
permits relating to the use of Project Water for landscape irrigation. All costs of
obtaining such permits shall be 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 Beach Cantry CYWb
September. 1896
right of CITY to determine allocation of all water, both Project Water and •
potable, in the event of emergencies. If USER terminates this Agreement as
authorized under the terms of this Agreement, CITY must provide USER with
potable water in the place of Project Water. Furthermore, in the event that
OCWD ceases producing and distributing Project Water or in the event that the
treatment criteria imposed by any Regulatory Agencies exceeds those existing
as of the date of this Agreement, either CITY or USER shall have the option to
cancel this Agreement. CITY shall convert service on the SITE back to a
potable water system(s) at no expense to USER if this Agreement is canceled
by CITY during the initial term of this Agreement or USER pursuant to Sections
2 and 4 above. The cost of conversion back to a potable water system shall be
bome by USER if said conversion occurs after the initial term of this Agreement.
14. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of Project Water from
the Green Acres Project beyond that usable by USER. CITY reserves the right
to enter into contracts with others for the sale of any Project Water so long as
such contracts do not interfere with CITY's ability to supply sufficient Project
Water to meet USER's requirements.
15. TERM
The term of this Agreement shall be ten (10) years from the day and year first •
above written. USER shall have the option to extend said term for two (2)
additional ten (10) year terms, provided that USER gives CITY written notice of
such election at least six (6) months prior to the expiration of the previous term.
The parties do hereby agree that any portion of this Agreement may be revised
by written amendment at any time by mutual agreement of the parties hereto.
16. ASSIGNMENT
This Agreement and the rights and benefits of CITY hereunder may be assigned
and transferred by CITY to any entity which assumes the responsibilities and
obligations of CITY for the sale and distribution of Project Water to USER,
provided, however, that CITY shall remain fully liable for all of the
responsibilities and obligations of CITY hereunder. This Agreement and the
rights and benefits of USER hereunder shall not be assigned or transferred by
USER without written consent from CITY and OCWD, which consent shall not
be unreasonably withheld.
Page 8 of 12
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•
GAP End -User Agreement
Newport Beach Country Cttb
September, 1996
• 17. ARBITRATION
(a) CITY and USER hereby agree that all controversies and claims arising
directly or indirectly out of this Agreement shall at the written request of
any party be arbitrated pursuant to the applicable rules of the American
Arbitration Association. The arbitration shall occur in the State of
California. Judgment upon any award rendered by the arbitrator(s) may
be entered in any court having jurisdiction. The Federal Arbitration Act
shall apply to the construction and interpretation of this arbitration
agreement.
(b) A single arbitrator shall have the power to render a maximum award of
one hundred thousand dollars. When any parry files a claim in excess of
this amount, the arbitration decision shall be made by the majority vote of
three arbitrators. No arbitrator shall have the power to restrain any act of
any party.
(c) No provision of subparagraph (a) shall limit the right of any parry to
exercise self -help remedies or to obtain any provisional or ancillary
remedies (including but not limited to injunctive relief) from a court of
competent jurisdiction. The institution and maintenance of any remedy
permitted above shall not constitute a waiver of the rights to submit any
controversy or claim to arbitration. The statute of limitations, estoppel,
waiver, laches, and similar doctrines which would otherwise be
applicable in an action brought by a party shall be applicable in any
arbitration proceeding.
18. NOTICES
All notices, payments, transmittals of documentation and other writings required
or permitted to be delivered or transmitted to either of the parties under this
Agreement shall be personally served or deposited in a United States mail
depository, first class postage prepaid, and addressed as follows:
CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658 -8915
Attention: Public Works Director
USER: Newport Beach Country Club
1600 East Coast Highway
Newport Beach, CA 92660
Attention: Jerry L. Anderson
Director of Golf
Page 9 of 12
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GAP End -User Agreement
Newport Bearh Co ntry C►tb
September, 1996
or such over address as CITY or USER shall direct in writing. Service of any
instrument or writing by mail shall be deemed complete 48 hours after
depositing in a United States mail depository.
19. SUCCESSORS
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of CITY and USER and their respective successors and assigns.
Page 10 of 12
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GAP End -User Agreement
Newport Beach Corntry 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 John Hedges
Assistant City Attorney Mayor
ATTEST: THE NEWPORT BEACH COUNTRY CLUB
a private corporation
LaVonne Harkless Jerry L. Anderson
City Clerk Director of Golf
Page 11 of 12
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ACKNOWLEDGMENT OF CONSENT TO
EXECUTION OF AGREEMENT
it GAP End -User Agreement
Newport Beach Country Club
September, 1996
The ORANGE COUNTY WATER DISTRICT hereby consents to the foregoing
"AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT BEACH
COUNTRY CLUB REGARDING DELIVERY AND SALE OF GREEN ACRES PROJECT
WATER AT NEWPORT BEACH COUNTRY CLUB" entered into this day
Of ' 1996, by and between the CITY of Newport Beach, as the
Retailer of Project Water, and The Newport Beach Country Club, as the USER of
Project Water, for delivery and sale of Project Water to Newport Beach Country Club,
1600 East Coast Highway, Newport Beach, CA, for landscape irrigation.
APPROVED AS TO FORM: ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
General Counsel President
General Manager
f: \cat\debbie\ag\clean\nbcc.doc
09 -16.96
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