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HomeMy WebLinkAbout10 - Delivery & Sale of Recycled Water to BCCCCITY OF Q SEW PORT O O i NEWPORT BEACH City Council Staff Report Agenda Item No. 10 July 26, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Municipal Operations Department Director 949 644 -3055, mharmon @newportbeachca.gov PREPARED BY: George Murdoch, Utilities General Manager APPROVED: A 1 TITLE: Agreement for Delivery and Sale of Recycled Water to Big Canyon Country Club ABSTRACT: The agreement defines the delivery and sale of recycled water to the Big Canyon Country Club (BCCC). The agreement covers water quantity, quality and price, as well as, responsibilities of the recycled water pump station. RECOMMENDATION: It is recommended that the Mayor be authorized to enter into this agreement for the delivery and sale of recycled water to the BCCC. FUNDING REQUIREMENTS: The current and proposed recycled water rate in the agreement is set to not exceed 80% of the potable water rate. This revenue is posted to account 500 -5169 and in part offsets the city's recycled water purchase costs from the Orange County Water District budgeted in account 5500 -8297. DISCUSSION: The Orange County Water . District (OCWD) is the groundwater basin manager of Northern and Central Orange County. In an effort to protect the groundwater basin and conserve potable water use, OCWD initiated the Green Acres Project (GAP) in the mid 1980s. OCWD uses treated wastewater effluent from the Orange County Sanitation District and submits it to additional treatment to create this "recycled water ". This water is then suitable for use for the purposes of irrigation, greenbelts, and golf courses. In 1990, the city agreed by resolution (resolution 90 -49) to participate in the project. Six initial users were identified in the City of Newport Beach. Agreement for Delivery and Sale of Recycled Water to Big Canyon Country Club July 26, 2011 Page 2 • Newport Beach Country Club • Big Canyon Country Club • Corona del Mar High School • East Bluff Middle School • Bluffs Homeowners Association • The City of Newport Beach Currently, four of the original six use recycled water. The remaining two experienced technical difficulties rendering those sites as non - feasible to convert. In 2010, the City of Newport Beach (City) added two additional parks to the list. Bonita Creek Park and East Bluff Park currently use recycled water for irrigation. In 1995 OCWD entered into "end user agreements" with customers wishing to use the water. The agreements expired in 2005; however the City continued to supply recycled water to the GAP customers. The largest user of recycled water in the city is the BCCC; it is responsible for the operations and maintenance of its golf course. The golf course is located between Jamboree Road and MacArthur Blvd (west and east) and between Ford Road and San Joaquin Hills Road (north and south) shown as "Figure 1 ". The BCCC approached the City about entering into an agreement to define water quality, water quantity, and price for the recycled water. Additionally, the City currently owns and operates a recycled water pump station that supplies water to the BCCC golf course. The agreement includes a pump station license agreement where the City will continue to operate and maintain the facility but BCCC will pay the electrical costs. The agreement (attachment "A ") was developed by a team of individuals from the Office of the City Attorney, the Municipal Operations Department and Larry Tucker from the BCCC. All parties have agreed to the terms and the BCCC Board has approved the agreement. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Agreement for Delivery and Sale of Recycled Water to Big Submitted by: Mark Harmon ' Municipal Operations Department Director Canyon Country Club July 26, 2011 Page 3 Attachments: A. Agreement for Delivery and Sale of Recycled Water to Big Canyon Country Club Figure 1 Agreement for Delivery and Sale of Recycled Water to Big Canyon Country Club July 26, 2011 Page 4 Attachment "A" Agreement for Delivery and Sale of Recycled Water to the Big Canyon Country Club AGREEMENT FOR DELIVERY AND SALE OF RECYCLED WATER TO BIG CANYON COUNTRY CLUB THIS AGREEMENT FOR THE SALE OF RECYCLED WATER ( "Agreement ") is made and entered into as of this day of 2011, by and between the City of Newport Beach, a California Municipal Corporation ( "City "), and Big Canyon Country Club, a private, non- profit mutual benefit corporation ( "User'). City and User are at times referred to individually as "Party" and collectively as "Parties" herein. RECITALS A. City is the exclusive retail water purveyor within substantially all of City's boundaries providing water for residential, industrial, commercial, public agency, agricultural and other uses. City produces and /or distributes water in part purchased from the Municipal Water District of Orange County and in part produced from the Orange County groundwater basin, which basin is managed by the Orange County Water District. B. User is a private corporation in the jurisdictional and service boundaries of City, and currently purchases potable water and recycled water from City for its own use at Big Canyon Country Club, located at 1 Big Canyon Drive, Newport Beach, California hereto referenced as ( "Site "). C. City has the right to acquire wastewater treated to standards established by the State Health Department ( "Recycled Water') from the Orange County Water District. D. User desires to purchase and City desires to sell Recycled Water for allowable, suitable, non - potable uses, specifically landscape irrigation of the Site. 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. CITY AND USER FACILITIES City owns, operates and maintains or has a right to use a recycled water system including but not limited to the Pump Station (as hereinafter defined), piping, "swivel ell connection ", service meter, backflow preventers, and control valves ( "City Facilities "). User owns and maintains the pipelines, warning signs, warning tags and all appurtenances downstream of City's Facilities ( "On- Site Facilities'). The City Facilities and On -Site Facilities are depicted the drawings attached hereto as Exhibit "A" and incorporated herein by reference. The point where User's pipeline connects to the downstream end of City's Facilities shall hereinafter be referred to as the "Point of Connection ". The Point of Connection is in the Jamboree Road parkway near User's maintenance yard entrance approximately 1,300 feet northerly of San Joaquin Hills Road, is shown on Exhibit "A ". City Facilities will be operated and maintained by City for the purpose of distributing Recycled Water and potable 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, backflow preventers and identification tags. City shall be responsible for all costs associated with maintaining, repairing or replacing the pump station on the Site ( "Pump Station ") for the purposes of pumping Recycled Water and potable water to the Site. User shall pay for all energy costs associated with the Pump Station. User and City will execute concurrently herewith a separate agreement in which User will grant to City, at no cost to City, a license over, under, and across that portion of the Site proximate to the Pump Station to provide reasonable access to City for the operation, maintenance, repair, and replacement of the Pump Station. If the license is terminated, the City, at its sole option, may terminate this Agreement immediately, subject to the provisions of Section 12 below. 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 with respect to the sale and use of Recycled Water ( "Recycled Water Rules "), provided that the City has provided User with a copy of such Recycled Water Rules and shall provide User with any modifications or additions thereto within thirty (30) days of the promulgation of such modifications or additions. In the event that City or any other public agency shall promulgate or implement any rule or regulation that shall cause the total cost to User for the use of Recycled Water to exceed the total cost to User if it had used potable water instead of Recycled Water, User may terminate this Agreement upon thirty (30) days notice to City, subject to the provisions set forth in Section 12 below. 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 Recycled Water including, without limitation, the rate charged for such use pursuant to this Agreement and the incremental costs incurred to comply with this Agreement. -2- 3. QUANTITY OF WATER TO BE PURCHASED BY USER; INSTANTANEOUS MAXIMUM FLOW City agrees to supply Recycled Water to User and User agrees to purchase Recycled Water from City in accordance with the terms of this Agreement. The anticipated average annual Recycled Water usage at the site is two hundred ninety (290) acre -feet. Recycled Water flow demands for the Site's service shall not exceed an instantaneous maximum flow of two thousand two hundred (2,200) gallons per minute. In the event that the current use of the Site discontinues or is modified, City and /or User may terminate this Agreement, as applicable, subject to the provisions set forth in Section 12 below. If at any time during repair, replacement, maintenance or operation of the On -Site Facilities, real or potential hazards or evidence of such hazards are found to exist, City reserves the right and has the authority to take action to insure that the situation be remedied and to protect the public health, as is further set forth in the Recycled Water Rules. Such remedies may include, but shall not be limited to, the right of City to terminate Recycled Water service to Site, subject to the provisions of Section 12 below. 4. QUALITY OF WATER TO BE PURCHASED BY USER; PRESSURE City agrees that all Recycled Water delivered to User from the City 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 having jurisdiction to establish minimum standards for the quality of recycled water with respect to User's anticipated use ( "Regulatory Agencies "). Furthermore, User desires that the Recycled Water delivered to User pursuant to this Agreement meets the chemical water quality criteria set forth in the attached Exhibit "B ". During the term of this Agreement, User may notify City if User becomes aware that the quality of the Recycled Water fails to meet the criteria in Exhibit "B ". Upon such notification, City shall, on behalf of User, contact the Orange County Water District in an effort to restore the Recycled Water quality to the criteria specified in Exhibit "B" as quickly as possible. However, User expressly understands and agrees that under the terms of this Agreement, City shall have no responsibility to User if the Recycled Water provided fails to meet the water quality criteria specified in Exhibit "B ". If the Recycled Water fails to conform to the Regulatory Agencies requirements, City will terminate the flow of Recycled Water to the Site and provide potable water in its place (at a cost to User designated within the City's Municipal Code), and User may terminate this Agreement if such requirements are not met within thirty (30) days, or such other time period as the Parties may agree upon, subject to the provisions of Section 12 below. 1111021 In addition to the foregoing, City covenants that all Recycled Water delivered to User pursuant to this Agreement will not: (x) emit any offensive odor; (y) cause undesirable change to the environmental makeup of any of the lakes at the Site, including any offensive change to the odor, algae level, color or wildlife composition of such lakes; or (z) cause damage to any turf, trees, plants or other vegetation located on the Site, which damage shall include excessive salt buildup. In the event that User decides, in User's reasonable judgment, that any of the conditions referenced in (x), (y), or (z) above exists, City and User agree to use the following procedure: a. User shall notify City of the problem. b. City shall, within three (3) days of such notification investigate the problem. c. If City agrees that a problem exists, City will attempt to remedy the problem. If City is unable to remedy the problem within thirty (30) days after City receives notice from User, City will terminate the flow of Recycled Water to the Site and provide potable water in its place. d. 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. e. If despite their good faith effort, City and User are still unable to agree whether a problem exists, City and/or User may terminate this Agreement subject to the provisions in Section 12 below. Recycled Water shall be delivered on a continuous basis at a pressure of not less than ninety pounds per square inch (90 psi) for demands at or less than thirteen hundred gallons per minute (1,300 gpm), and not less than eighty pounds per square inch (80 psi) for demands at or in excess of thirteen hundred one gallons per minute (1,301 gpm) to two thousand two hundred gallons per minute (2,200 gpm) at the Point of Connection between the hours of 8:00 p.m. to 6:00 a.m. User shall not exert a demand for Recycled Water between the hours of 6:00 a.m. and 8:00 p.m. unless User's staff is present to ensure that the public does not come into contact with Recycled Water. 5. PRICE OF RECYCLED WATER City acknowledges the concerns of User regarding (a) potential need to add or adjust fertilizers and /or water supplements to the Recycled Water in order to maintain high quality fairway turf, and (b) the potential need to use additional amounts of potable water in order to offset the increased amounts of nutrients in the Recycled Water. Pursuant to California Water Code Section 13550 et seq., as the same may be amended from time to time, User is required to use Recycled Water for landscape irrigation purposes if suitable recycled water is available at a reasonable cost to User. -4- Therefore, during the entire term of this Agreement, the price to be paid by User for Recycled Water delivered by City shall not exceed the lower of (a) eighty percent (80 %) of the potable water variable rate, as such rates are established by resolution of the City Council and enforced on the date of delivery of Recycled Water, or (b) the lowest rate then offered by City to any purchaser of Recycled Water, whether such rate is determined as a percentage of City's retail rate for potable water or otherwise, or (c) the cost to City to provide and transport Recycled Water to the Site as shall be reasonably analyzed and determined by City from time to time. The retail rates for potable water shall be subject to modification as determined by and within the discretion of the City Council. At least forty -five (45) days prior to the adoption of a resolution establishing the water rates of City and /or modifying the purchase price of Recycled Water, City shall give written notice to User and provide notice as prescribed in City's Municipal Code and State Law, of a public hearing on the resolution and price which shall apply following adoption of said resolution. 6. METERING AND MEASUREMENT OF FLOWS City shall maintain, at its own expense, a control valve or valves and a meter for the purpose of measuring the quantity of Recycled Water delivered pursuant to the terms of this Agreement from City to User at the Point of Connection where such water is delivered to User. City or a designated representative of City shall periodically read the service meter and record usage of Recycled Water onto a schedule. Upon request, City shall make these records available to User. 7. PAYMENT FOR RECYCLED WATER City shall invoice User for the price of the Recycled Water purchased by User as part of City's regular billing cycle. Said invoices shall be paid within nineteen (19) days of the billing date. City retains the right to change billing cycles and due dates as necessary upon sixty (60) days prior written notice to User, so long as such change is consistent with formally adopted City -wide practices and procedures and State law. 8. LIMITATION OF USE User understands and agrees that Recycled Water delivered from City Facilities pursuant to the terms hereof has restricted uses, and User agrees to use the Recycled Water only upon the property of User for landscape irrigation at the Site and only for these uses. 9. COVENANTS, REPRESENTATIONS AND WARRANTIES City hereby covenants as follows: a. There will be sufficient Recycled Water to meet all of User's landscape irrigation needs with respect to the Site. -5- b. All actions taken by City with respect to Recycled Water and City Facilities will comply with all regulations promulgated by all Regulatory Agencies and all other applicable laws. c. City will use all commercially reasonable efforts to supply User with suitable Recycled Water. d. City will provide User with the assistance of City engineers and other staff, to assist in the review of any User's irrigation system future redesign for the purposes contemplated herein. Except as may be otherwise required by State or Federal law City hereby represents and warrants 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 reasonably necessary to mitigate the effects of excessive build up of nutrients in the soils due to use of Recycled Water, all as reasonably agreed to by User and City and within acceptable State Health Department standards. 10. INDEMNIFICATION a. City agrees to protect, indemnify, defend, save and hold harmless User, its directors, officers, members, agents and employees from and against any and all loss, liability, expense or damage of any kind or nature and from any suits, claims or demands, including (a) all consequential damages; (b) all damages to any natural resources, and the costs of any required or necessary repair, clean up, response cost, or detoxification of the Site or any portion thereof, and the preparation and implementation of any closure, remedial or other required plans; and (c) all costs and expenses incurred in connection with clauses (a) and (b), including all attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or damage, including clauses (a), (b) and (c) above, shall collectively be referred to herein as "Damages "), which arise directly or indirectly out of (x) the use by User of the Recycled Water as opposed to potable water as contemplated herein, (y) the existence or alleged existence of any Hazardous Substances (as defined below) in the Recycled Water, or (z) the failure to remove any Hazardous Substances from the Recycled Water, unless such suit, claim or demand is caused primarily by the negligence or willful misconduct of User, its directors, officers, members, agents and employees, or the negligent operation, maintenance or repair by User of On -Site Facilities required to be operated, maintained or repaired by User pursuant to this Agreement. 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 written notice of the matter and an opportunity to defend itself, at City's cost and expense. b. User agrees to protect, indemnify, defend, save and hold harmless City, its elected officials, appointees, agents and employees from and against any and all loss, liability, expense or damage of any kind or nature and from any suits, claims or demands, including (a) all consequential damages; (b) all damages to any natural resources, and the costs of any required or necessary repair, clean up, response cost, or detoxification of the Site or any portion thereof, and the preparation and implementation of any closure, remedial or other required plans; and (c) all costs and expenses incurred in connection with clauses (a) and (b), including all attorneys' fees and expenses, whether in suit or not (such loss, liability, expense or damage, including clauses (a), (b) and (c) above, shall collectively be referred to herein as "Damages "), which arise directly or indirectly out of (x) the use by User of the Recycled Water as opposed to potable water as contemplated herein, (y) the existence or alleged existence of any Hazardous Substances (as defined below) in the Recycled Water, or (z) the failure to remove any Hazardous Substances from the Recycled Water, unless such suit, claim or demand is caused primarily by the negligence or willful misconduct of City, its officers, appointees, agents and employees, or the negligent operation, maintenance or repair by City of On -Site Facilities required to be operated, maintained or repaired by City pursuant to this Agreement. The foregoing indemnity shall apply to any residual contamination on, under or about the Site, as well as claims of any owners or occupants, and to any contamination of any property or natural resources, arising from the Recycled Water. Upon receiving knowledge of any suit, claim or demand asserted by a third parry that City believes is covered by this indemnity, City shall give User notice of the matter and require User to defend City, at User's cost and expense with legal counsel approved by the City. c. The obligations of City and User under this Section 10 shall survive the expiration or termination of this Agreement. 11. PERMITS User and City shall comply with the regulations set forth in any permits applicable to use of Recycled Water, provided that such compliance by User shall not materially increase the cost of Recycled Water or unreasonably interfere with User's golf course and related operations. 12. CONDITIONS SUBSEQUENT; TERMINATION OF AGREEMENT a. In the event that City is unable to deliver Recycled Water through City 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 Recycled Water to the Site is expected. b. In the event City is unable to deliver Recycled Water to User or defaults under this Agreement, City will provide User with potable water at, and User agrees to pay, the potable water -7- rate subject to the right of City to determine allocation of all water, both Recycled Water and potable, in the event of emergencies. c. If User or City terminates this Agreement as authorized under the terms of this Agreement, City will provide User with potable water in lieu of Recycled Water at the Point of Connection. Furthermore, 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 terminate this Agreement. d. If this Agreement expires or is terminated, City may elect to abandon the Pump Station in place and will provide potable water to User at the existing Point of Connection. In the event City determines to remove the Pump Station, City shall give User ninety (90) days prior written notice of such determination during which time User may continue to use the Pump Station. In the event of abandonment User shall assume ownership of the Pump Station. User shall be responsible for any costs associated with the conversion of User's system from Recycled Water to potable water. e. This Section 12 shall survive the termination of this Agreement. 13. LIMITATION OF CONTRACTUAL COMMITMENT City reserves the right to enter into contracts with others for the sale of Recycled Water so long as such contracts do not reasonably interfere with City's ability to supply sufficient Recycled Water to meet User's current requirements. 14. TERM The initial term of this Agreement shall be from the day and year first above written through and including June 30, 2021. User shall be deemed to have extended the initial term for successive ten (10) year terms, unless and until User gives City written notice of User's election to terminate this Agreement at least six (6) months prior to the expiration of the previous term. a. 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 in a form approved by City Attorney. 15. ASSIGNMENT This Agreement and the rights and benefits of City hereunder may be assigned and transferred by City to any entity which assumes the responsibilities and obligations of City for the sale and distribution of Recycled 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. 16. 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: 19"N City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92658 -8915 Attention: City Manager USER: Big Canyon Country Club One Big Canyon Drive Newport Beach, CA 92660 Attention: General Manager or such other address as City or User shall direct in writing. Service of any instrument or writing by mail shall be deemed complete forty -eight (48) hours after depositing the same in a United States mail depository. 17. 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. 18. FORCE MAJEURE City is not responsible for any act outside of its control that prevents City from supplying Recycled Water to User under this Agreement, including but not limited to, an act of God. In the event of any act outside of the City's control that prevents City from supplying Recycled Water to User, City, at its option, may terminate this Agreement without any liability to User, subject to the provisions of Section 12 above. 19. INCORPORATION OF RECITALS The Parties acknowledge the Recitals provided within this Agreement are true and correct and are incorporated into the operative part of this Agreement. I� IN WITNESS WHEREOF, the parties herein have executed this Agreement as of the date set forth above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Leonie Mulvihill, �li' Jl' Assistant City Attorney vl ATTEST: Leilani I. Brown, City Clerk 10- CITY OF NEWPORT BEACH, A Municipal Corporation M Michael Henn, Mayor BIG CANYON COUNTRY CLUB, a California private non - profit mutual benefit corporation By: 4 £w1d Robert W. Clemo Its: President By: Its: 45-SA ._Xcne �ARY �ne RSyRf /� PUMP STATION LICENSE AGREEMENT THIS PUMP STATION LICENSE AGREEMENT ( "Agreement") is dated as of , 2011 by and between Big Canyon Country Club, a private, non - profit mutual benefit corporation ( "User"), and the City of Newport Beach, a municipal corporation ( "City "). RECITALS A. User and City are parties to that certain Agreement for Delivery and Sale of Recycled Water to User of even date herewith (the "End -User Agreement "). Pursuant to the terms of the End User Agreement, City must operate and maintain a pump station and any related structures (collectively, the "Pump Station ") on property owned by User (the "Site ", which definition shall include all present and future irrigation systems owned by User). In accordance therewith, User desires to grant to City certain limited rights over portions of the Site in order to access the Pump Station and in order for the City to carry out its duties under this Agreement and the End- User Agreement. B. City acknowledges that the continuous operation of the Pump Station is essential to the successful maintenance of User's golf course and other landscaped areas at the Site. AGREEMENT NOW, THEREFORE, taking the foregoing Recitals into account and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. License. User hereby grants to City a nonexclusive right of entry over, under, and across that portion of the Site proximate to the Pump Station as is reasonably necessary in the opinion of City to allow City to discharge the duties of City under this Agreement for the purposes of operating, maintaining, repairing and replacing the Pump Station and related facilities in its existing location. User shall have the right to approve the noise generation level of the Pump Station, which approval shall not be unreasonably delayed or withheld. 2. Term of License. City's rights to use the License shall terminate on the earlier of (a) the date that City removes or abandons the Pump Station on the Site, (b) within sixty (60) days of receipt by City of a notice of default under this Agreement, if such default is not cured within such time, or (c) the date the term of the Sale of Recycled Water Agreement ends, as -11- such term may be extended pursuant to the terms of the Sale of Recycled Water Agreement. 3. Location of Pump Station. This Agreement does not confer upon City any right to locate the Pump Station on any portion of the Site except its existing location contiguous with Jamboree Road. City and its agents shall have absolutely no right to enter any structure constructed upon the Site except for the structure enclosing the Pump Station or City owned piping connections without the permission of User. 4. Right to Enter Site. City and its agents shall exercise the rights granted under this Agreement at reasonable times during normal business hours or after business hours should city have the need to maintain operation of City Facilities, and in a reasonable manner; provided, however, if the accessing of the Pump Station blocks driveways or otherwise interferes with traffic circulation, parking or the operation of User's maintenance facility located contiguous with the Pump Station, then City agrees to access the Pump Station at times when the maintenance facility is closed unless the Pump Station is experiencing a malfunction and /or an emergency situation is occurring. 6. Damage to the Site. Neither City nor its agents shall in the exercise of its rights under this Agreement cause any damage to the Site. If City or its agents cause any damage to the Site in the exercise of its rights under this Agreement, including any damage to any landscaped area, City shall cause the same to be repaired at City's expense within ten (10) days of demand by User. City's repair obligations shall not include the replacement of trees, shrubs, enhanced paving (e.g., decorative concrete, pavers, tiles, etc.) or other soft scape in, around or on the route to and from the Pump Station. If City fails to repair such damages within such period, User may perform such repairs and obtain reimbursement from City for the cost thereof. 6. Repair of Pump Station. City shall cause the Pump Station to be incorporated into (a) the alarm system currently operated by City for all other pump stations that it maintains, which system causes alarms to alert City personnel whenever a pump station is experiencing problems, or (b) any such system that is adopted in the future by City that provides notice to City personnel that a certain pump station is experiencing problems. City further covenants that it will respond to problems that the Pump Station is experiencing in accordance with City's standard policies and procedures and within a period of time that is commensurate with the period of time that it takes City to respond to the problems of all of the other pump -12- stations that it maintains. User acknowledges and agrees that, in the event that more than one pump station is experiencing problems at the same time, City will respond first to the problem that poses the greatest threat to the public. 7. Maintenance of Pump Station. City shall provide scheduled maintenance to the Pump Station that is commensurate with the scheduled maintenance that City provides to the other pump stations that it operates. City shall (a) cooperate with User in designing a maintenance schedule, (b) keep User informed of the maintenance schedule and any variations there from, and (c) make every effort to avoid having to shut down the Pump Station during such maintenance. User shall cooperate with City in designing a maintenance schedule. 8. Indemnification: Remediation. City shall indemnify, defend and hold harmless User and its successors and assigns, partners, members, principals, officers, directors, shareholders, direct and indirect agents, employees and representatives from and against all claims, suits, causes of action, injuries, damages, losses and liabilities of any kind whatsoever, regardless of by or against whom caused or instigated, to the extent arising directly or indirectly out of (i) City's construction, operation, maintenance, repair, replacement or other use of the Pump Station and /or Site required by this Agreement or the End -User Agreement; (ii) the presence on the Site of the Pump Station; or (iii) the presence on the Site of City or its agents, employees, contractors, carriers, invitees or licensees. 9. Hazardous Materials: Environmental Laws. If in the process of exercising any rights under this Agreement, City and /or its agents cause any Hazardous Materials to be released onto the Site, City shall promptly (but in no event more than ten (10) days after written demand by User) commence and diligently prosecute to completion the remediation of the same under all applicable laws, and indemnify, defend and hold harmless User and its successors and assigns, partners, members, principals, officers, directors, shareholders, direct and indirect agents, employees and representatives from and against all claims, suits, causes of action, injuries, damages, losses and liabilities of any kind whatsoever, regardless of by or against whom caused or instigated, arising directly or indirectly out of such release of Hazardous Materials. If City fails to timely remediate such contamination, User shall have the right to exercise any self -help remedies and obtain reimbursement from City for the cost of such self -help remedies. -13- (a) As used in this Agreement, the term "Environmental Laws" means all federal, state or local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials on, about or adjacent to any portion of the Site, or generally dealing with the public health and safety and the protection of the environment. As used in this Agreement, the term "Hazardous Materials" shall mean any oil or petrochemical products, PCB's, asbestos, urea formaldehyde, salts, flammable explosives, radioactive materials, hazardous wastes, toxic, corrosive, mutagenic or pathogenic substances or related materials, including, without limitation, any substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "toxic substances" or any similar term under any applicable Environmental Law. 10. Recovery of Legal Expenses by Prevailing Party in any Action. In any judicial proceeding between the Parties that seeks to enforce the provisions of this Agreement, the prevailing party shall recover all of its actual and reasonable costs and expenses. These costs and expenses shall include expert witness fees, attorneys' fees, and costs of investigation and preparation before the initiation of the action. The right to recover these costs and expenses shall accrue upon initiation of the action. 11. Captions. The paragraph headings or captions used herein are for convenience only and are not a part of this Agreement and do not limit, define or amplify the scope or intent of the provisions hereof. 12. Governing Law. This Agreement shall be governed by the laws of the State of California with venue in Orange County. 13. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document. Any signature page of this Agreement may be detached from any counterpart of this Agreement and re- attached to any other counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. 14. Entire Agreement. This Agreement and the agreements referenced herein contain the entire agreement between the parties relating to the subject matter hereof. Any oral or other written representations or statements concerning the subject matter hereof shall be of no force or effect. -14- 15. Successors. This Agreement shall inure to the benefit of, and bind, User and its successors and assigns in title to the Site and each and every portion thereof. City shall have no right to transfer or assign its rights or obligations under this Agreement. 16. Modification. This Agreement may only be amended by a written document signed by both parties. IN WITNESS WHEREOF, the parties herein have executed this Agreement as of the date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By - *- I t Leonie Mulvihill, -7//alit Assistant City Attorney ATTEST: 0 Leilani I. Brown, City Clerk P&M CITY OF NEWPORT BEACH, A Municipal Corporation 0 Michael Henn, Mayor BIG CANYON COUNTRY CLUB, a California private non - profit mutual benefit corporation By: AC(AW) Robert W. Clemo Its: President n By: Its: RSS�s �w.u� Secne �AAV ��enSuRelt, r City of Newport Beach Recycled Water Pump Station 1860 Jamboree Road I SERVICE GATE H F � O d d L O E J ® Pump Turbo Meter -- Recycled Water Potable Water Chain Link Fence POINT OF CONNECTION z c N , x s w 0 3 0 CITY FACILITIES I SWIVEL ELL I BACKFLOW PREVENTER GATE ENTRANCE Exhibit A A i E14 � s o Io za ao Feet EXHIBIT B. WATER QUALITY CRITERIA Water Quality Parameter *Maximum 3 -Year Average Limit Electrical Conductivity Ecw) 1,550 umhos /cm or 1.55 dS /m Total Dissolved Solids (TDS) 900 m /L Sodium Adsorption Ratio (SAR) 5.7 Adjusted Sodium Adsorption Ratio SARadi.) 11.6 Bicarbonate as HCO3 ion 250 m /L Borbon B) 0.50 m /L Choloride (Cl) 250 m /L Sodium Na 200 mg /L Bacteriological A minimum of 95% of all health department required samples collected at the treatment plant shall comply with the following: • Not exceed a median value of 2.2 coliforms per 100 ml for any 7 consecutive daily samples. • Not exceed 23 coliforms per 100 ml in daily samples. ** Maximum 2 -Day Average ** *Not to Exceed Electrical Conductivity (ECw) Limit at the Green Acres Treatment Plant 1,725 unhos /cm or 1.725 dS /m 1,775 umhos /cm or 1.775 dS /m `3-Year" shall be understood to mean three consecutive calendar years (i.e. January through December) "Average" shall be understood to mean the average concentration of any said parameter in the Recycled Water Measured at Big Canyon Country Club by its Staff. **EC limit in The Recycled Water. This parameter shall be determined by averaging over a two -day period the EC measurements taken at Big Canyon Country Club by its staff. * * *EC limit in The Recycled Water. Compliance with this limit shall achieved if The Recycled Water does not exceed the limit on more than two occasions each month based upon EC measurements taken every two hours at Big Canyon Country Club by its staff.