17-0706_MARBELLA PROPERTY OWNER'S ASSOCIATION_Entry License Agreement RECYCLED WATER ON-SITE CONVERSION - ENTRY LICENSE AGREEMENT
THIS RECYCLED WATER ON-SITE CON ER ION - ENTRY LICENSE
AGREEMENT ("Agreement") is entered into as of , 2017 ("Effective
Date") by and between the City of San Juan Capi rano, a municipal corporation,
("City") and Marbella Property Owner's Association ("Owner"). Owner and City shall
sometimes be referred to individually as "Party" and collectively as "Parties."
RECITALS
A. Owner is the owner of that certain real property located in the County of
Orange, State of California and identified/described on Exhibit "A" attached hereto and
by this reference incorporated herein ("Property").
B. City has initiated a Tertiary Treated Recycled Water Project to design and
construct tertiary treated recycled water ("Recycled Water") service within the City's
service area, including to the Property.
C. City currently provides potable water ("Potable Water") to the Property for
irrigation purposes. In lieu of Potable Water, Owner has agreed to purchase Recycled
Water from the City for the purpose of irrigating the Property.
D. Installed on the Property is an irrigation water system ("Existing Water
System") which has been used by Owner to distribute Potable Water to the Property.
E. Prior to the delivery of Recycled Water to the Property, City shall convert
the Existing Water System to a recycled water system ("Recycled Water System"),
including, but not limited to, installing recycled water service line and meter, irrigation
piping modifications, label valves, boxes and controllers indicating recycled water use,
signage and other modifications as depicted on Exhibit "A" attached hereto
("Modifications").
F. City is willing to construct and install the Modifications and to transfer to
Owner the Modifications after installation thereof and Owner is willing to accept the
transfer of the Modifications on the terms and conditions set forth herein.
G. (1) Metropolitan Water District of Southern California ("Metropolitan") is
offering an On-site Retrofit Pilot Program ("Program") that will provide financial
incentives to public or private owners of real property to convert potable water irrigation
service to recycled water service. Items eligible for reimbursement include, without
limitation, project design, permitting, construction costs associated with the retrofit of
potable to recycled water systems, connection fees and signage. Metropolitan provides
reimbursement under the Program of up to One Hundred and Ninety Five Dollars
($195.00) per acre-foot for five (5) years of estimated water use by the applicant, with a
maximum reimbursable amount of the actual retrofit costs.
(2) Metropolitan's Program works on a first-come, first-served basis.
Applications for the Program are available online at bewaterwise.com beginning July 1,
09897.00000\24493165.2 1
2014. The application must be submitted to Metropolitan on behalf of the Owner. The
application provides an option to direct all reimbursable amounts to the City.
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES CONTAINED
HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. (a) City shall design, construct and install, at City's sole cost and expense, or
cause to be designed, constructed and installed at City's sole cost and expense, the
Modifications shown on Exhibit "A" on the Property.
(b) City, at City's sole cost and expense, shall secure or cause to be secured
all necessary permits, licenses, approvals from all necessary governmental authorities
to construct and install the Modifications on the Property .
2. Owner hereby grants to City a non-exclusive license to allow City's officials,
officers, administrators, managers, employees, contractors, subcontractors, consultants,
representatives and agents (collectively, "City's Representatives") to enter over, under,
upon, along, through and across the Property to: (a) construct and install the
Modifications and appurtenances thereto; and (b) remove the applicable portions of the
Existing Water System, along with the reasonable right of access to and from said
license for the purposes of exercising the rights granted herein ("Entry License").
3. The term of this Agreement shall commence upon the Effective Date, and shall
continue until the construction and installation of Modifications is completed and the
provisions in Sections 6 and 7 of this Agreement have been satisfied, except that in the
event that a Warranty Issue arises pursuant to Section 8 of this Agreement, the term of
this Agreement shall continue until the conclusion of the Remedy Period.
4. City shall not permit to be enforced against the Property any mechanics liens
arising out of any work performed by or on behalf of the City in connection with the
construction and modification of the Modifications and appurtenances thereto or any
material furnished to the City. If any such lien is filed against the Property, the City shall
discharge all such liens within a reasonable amount of time after an action is brought to
enforce the same, however City may contest any such lien so long as the enforcement
thereof is stayed.
5. City shall provide or shall cause to be provided twenty four (24) hour written
notice to Owner that City or City's Representatives intend to exercise the right to enter
Property, pursuant to this Agreement, for purposes related to the construction and
installation of the Modifications.
6. The City shall restore, or cause to be restored, the surface or subsurface of the
Property to the condition the Property was in as of the time of performance of
construction and installation of the Modifications and such restoration shall be
performed with due diligence and dispatch. Notwithstanding the foregoing, the City shall
use commercially reasonable efforts to restore or cause restoration within (sixty) 60
days of the construction and installation of the Modifications.
7. Upon the completion of the construction and installation of the Modifications, the
City shall transfer ownership thereof to the Owner, who thereafter will be solely
09897.00000\24493165.2 2
responsible for operating and maintaining the Recycled Water System in good working
order and in accordance with all State, Federal and local laws and regulations.
8. City warrants to Owner that City shall require City's agreement with any
contractor ("Contractor") hired by City to install Modifications ("Contractor Agreement")
to require that the Modifications shall be free from construction defects for a period of
twelve (12) months after construction of the Modifications is completed ("Warranty
Period") and that any such Contractor shall repair or cause to be repaired, at said
Contractor's sole cost and expense, all failures of the Modifications due to faulty
materials or faulty installation ("Warranty Issue") within the foregoing Warranty Period,
provided written demand to City for correction of a Warranty Issue is made by Owner
within the Warranty Period. The Contractor Agreement shall require Contractor to repair
or cause to be repaired the Warranty Issue within thirty (30) calendar days after receipt
of a written notice from City. The Contractor Agreement shall require that, in the event
the Warranty Issue may not be remedied in the thirty (30) day period, the Contractor
shall initiate such repair within such period and diligently and continuously prosecute
such repair to cure, taking all reasonable mitigation measures to protect Owner's
employees, residents, owners and guests and property during the repair process
("Remedy Period").
9. On the completion of the Modifications and subject to the warranty set forth in
Section 7 of this Agreement, the Recycled Water System, including, without limitation,
the Modifications, shall be owned, operated, repaired, replaced and maintained by
Owner, at Owner's sole cost and expense. Maintenance, operation and usage of the
Recycled Water System, including the Modifications, shall be in accordance with the
requirements of City's ordinances, rules and regulations for recycled water, as amended
from time to time.
Owner shall, at Owner's own cost and expense, at all times keep and maintain
the Recycled Water System, including the Modifications, in fully operable and
functioning condition. Except as otherwise provided herein, the City shall have no
obligation, liability or responsibility whatsoever with respect to operation, maintenance,
repair or replacement of the Recycled Water Facilities, including the Modifications.
10. Prior to the provision of Recycled Water to the Property, Owner shall obtain a
permit from the City to use Recycled Water on the Property. Owner shall comply with all
City rules, regulations, ordinances and procedures (collectively, "Rules") with respect to
the use of Recycled Water as such Rules may be modified from time-to-time.
11. (a) Owner hereby agrees that the City will complete the Metropolitan Program
application on Owner's behalf. Owner further irrevocably agrees that all rebate funds
(reimbursable amounts) associated with the Program will be payable to the City, and the
Owner will not be entitled to any of the rebate funds paid to the City by Metropolitan.
(b) Owner agrees, at Owner's sole cost and expense, to protect, indemnify,
defend, and hold harmless the City and City's Representatives and Metropolitan and its
Board of Directors, officers, representatives, agents and employees from and against
any and all claims, losses, liabilities, damages, costs and expenses, including, but not
limited to, any claims or liability for injury or death to any person; damage to property,
09897.00000\24493165.2 3
natural resources or to the environment: water quality problems; or cross connections
with potable water) that arise out of or relate to Owner's operation, repair or ownership
of the Modifications ("Claims"). Such indemnity shall include all damages and losses
related to any claim made, whether or not a court action is filed, and shall include
attorney's fees, administrative and overhead costs, engineering and consulting fees and
all other costs related to or arising out of such claim or asserted liability. The foregoing
indemnity is required by Metropolitan as a condition to reimbursement of certain costs
pursuant to the Program as more particularly described in Recital G.
12. (a) Each individual and entity executing this Agreement hereby represents
and warrants that he, she or it has the capacity set forth on the signature pages hereof
with full power and authority to bind the Party on whose behalf he, she or it is executing
this Agreement to the terms hereof.
(b) This Agreement is the entire agreement between the Parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, whether oral or written, between the Parties with respect to the matters
contained in this Agreement. Any waiver, modification, consent or acquiescence with
respect to any provision of this Agreement shall be set forth in writing and duly executed
by or on behalf of the Party to be bound thereby. No waiver by any Party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
(c) 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 instrument. The signature page of any counterpart may be detached
therefrom without impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto except having
additional signature pages executed by other Parties to this Agreement attached hereto.
(d) Time is of the essence in the performance of and compliance with each of
the provisions and conditions of this Agreement.
(e) Any communication, notice or demand of any kind whatsoever which
either Party may be required or may desire to give to or serve upon the other shall be in
writing and delivered by personal service (including express or courier service), by
electronic communication, whether by e-mail or telecopying (if confirmed in writing sent
by registered or certified mail, postage prepaid, return receipt requested), or by
registered or certified mail, postage prepaid, return receipt requested, addressed as
follows:
City City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Steve May, Public Works and Utilities Director
Owner: Bob Curran, Property Manager, p (949) 672-9070
Seabreeze Management Company Inc.
39 Argonaut, Suite 100
Aliso Viejo, CA 92656
09897.00000\24493165.2 4
E-Mail: Robert.curran@seabreezemgmt.com
Any Party may change its address by written notice given to the other in the manner
provided in this Section. Any such communication, notice or demand shall be deemed
to have been duly given or served on the date personally served, if by personal service,
one (1) day after the date of confirmed dispatch, if by electronic communication, or three
(3) days after being placed in the U.S. mail, if mailed.
(f) This Agreement and the covenants and agreements herein contained
shall be binding on, and inure to the benefit of, the parties hereto and their respective
heirs, successors and assigns.
(g) The obligations of the parties to indemnify, protect, defend and hold
harmless the other party shall survive the expiration or earlier termination of this
Agreement.
(h) The provisions of this Agreement are for the exclusive benefit of the
parties and their successors and assigns, and shall not be deemed to confer any rights
upon any person, except such parties and their successors and assigns. No obligation
of a party under this Agreement is enforceable by, or is for the benefit of, any third
parties.
(i) Wherever possible, each provision of this Agreement shall be interpreted
in such a manner as to be valid under applicable law, but, if any provision of this
Agreement shall be invalid or prohibited thereunder, such invalidity or prohibition shall
be construed as if such invalid or prohibited provision had not been inserted herein and
shall not affect the remainder of such provision or the remaining provisions of this
Agreement.
0) The language in all parts of this Agreement shall be in all cases construed
simply according to its fair meaning and not strictly for or against any of the Parties
hereto. Section headings of this Agreement are solely for convenience of reference and
shall not govern the interpretation of any of the provisions of this Agreement.
References to "Sections" are to Sections of this Agreement, unless otherwise
specifically provided. Unless the context clearly requires otherwise: (i) the plural and
singular shall each be deemed to include the other; (ii) the masculine, feminine and
neutral genders shall each be deemed to include the others; (iii) "shall," "will," or
"agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive; (v) "include,"
"includes," and "including" are not intended to be restrictive, and lists following such
words shall not be interpreted to be exhaustive or limited to items of the same type as
those enumerated; and (vi) "days" means calendar days, except if the last day for
performance occurs on a Saturday, Sunday, or any legal holiday, then the next
succeeding business day shall be the last day for performance.
(k) This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
(I) If any action is brought by either Party against the other Party, the
prevailing Party shall be entitled to recover from the other Party reasonable attorneys'
fees, costs and expenses incurred in connection with the prosecution or defense of
09897.00000\24493165.2 5
such action. For purposes of this Agreement, the term "attorneys' fees" or "attorneys'
fees and costs" shall mean the fees and expenses of counsel to the Parties hereto,
which may include printing, photocopying, duplicating and other expenses, air freight
charges, and fees billed for law clerks, paralegals and other persons not admitted to the
bar but performing services under the supervision of an attorney.
(m) The Parties agree that any action or proceeding to enforce or relating to
this Agreement shall be brought exclusively in the state or federal courts located in
Orange County, California, and the Parties hereto consent to the exercise of personal
jurisdiction over them by any such courts for purposes of any such action or proceeding.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above written.
OWNER: CITY:
CITY OF SAN JUAN CAPISTRANO,
a municipal corporation
By:hAiu By:
in 4111, a ager
Its: 12l2>iStUS'1� B tLl
sy17, •ms, City Cl
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09897.00000%24493165.2 6
EXHIBIT LIST
EXHIBIT "A" DESCRIPTION OF PROPERTY/ MODIFICATIONS
09897.00000\24493165.2
EXHIBIT "A"
DESCRIPTION OF PROPERTY AND RECYCLED WATER
CONNECTION/IRRIGATION SYSTEM IMPROVEMENTS
[See Attachment]
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