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17-0706_LOMAS VERDE HOA_Entry License Agreement RECYCLED WATER ON-SITE CONVERSION -ENTRY LICENSE AGREEMENT THIS RECYCLED WATER ON-SITE CON E ION - ENTRY LICENSE AGREEMENT ("Agreement") is entered into as of , 2017 ("Effective Date") by and between the City of San Juan Cap rano, a municipal corporation, ("City") and Lomas Verde HOA ("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: Lomas Verde HOA Attn: Jim Batliner 32025 Paseo Amante San Juan Capistrano, CA 92675 E-Mail: jimbatliner@cox.net 09897.00000\24493165.2 4 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. (j) 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 such action. For purposes of this Agreement, the term "attorneys' fees" or "attorneys' 09897.00000124493165.2 5 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' AZ<LP---Are—e-r. By: Air, r tN 4 I9•rfi T �: ngel, i ity Marla. Its: B : ' LoM/9-s 694-.2.0/t44-.91t36-1k 'r . is, City CI: 09897.00000\24493165.2 6 EXHIBIT LIST EXHIBIT "A" DESCRIPTION OF PROPERTY/ MODIFICATIONS 09897.00000124493165.2 EXHIBIT "A" DESCRIPTION OF PROPERTY AND RECYCLED WATER CONNECTION/IRRIGATION SYSTEM IMPROVEMENTS [See Attachment] 09897.00000\24493165.2 ,1;11& nit Ari'' ..,, �1i \ EX RPPCTOit TO REMOVE AND RETURN Y k/ 'ti ., F /lfY TO LOUR VERDE HOA.CAP UNE. { • �.F :+I 1 //{/\'. w 4..{y 'y. ,T'/- IRRIGAT nOH fAl •. / -\�`, • A k,...! ' CONTROLLER � \� - \ REMOVE_E%IEIE_R AND SALVAGE TO CITY OF SAN J TSLN NGDA ERAOPREttSU EENCE CAPSTRANO.CONVERT KNOWING DOMESTIC I 1. ,. ►.L ATE1Eir.11M PER DETAIL 1 AMQW, E-3 .,,.x ., POE Q • RW IRNIGAPCN SERVES \ /...,Z.,,,,,......... `\\ / VT �i \ �. <,. CONTRACTOR TO FERN:SH AND INSTALL NEW 1-1/2. AREA BETWEEN STREET` / \ ¢' .,E%9 STA Ij�+l RW HAIN UNE(70,5)AND GATE VALVE AT THE PONT AT/// t\ItW IRbGA ill I IF - \. �\ � OF CONNECTION(POC).FURNISH AND INSTALL AND FENCE UNFS / CZRIIMIER' ,Y 1 ICONTROL RARE TO CONTROLLER 2 FOR REMOTE J ;� :..�_� \�. \' i CONTROL VALVE OPERATION(330 LE) xFG. � ... • �y�,1 �f 6 4:::°1:-. 40..,may .-..� •- � ' y" L. • Tr `\\ .on. 0,NoYR6 Ave 1e _ 1_,,,�HW-_ __n>.. _r•,�i'f WEN _._-..-__- 1• .•,pw `' ,P. \ _r - - _ '4 �-' � � .'IOM LOURS SAV JAN P- PARK METERED SERWCE gEx STORM DRAIN LEGEND ----•••-- EIDSTNG DOMESTIC WATER UNE V//ZZ/Z////l// RECYCLED WATER AREA FOR LACES SAN JUAN PARK CITY OF SAN JUAN CAPISTRANO vvx -- ,.• EXISTNG NPW IRR':GATON MAIN UNE I////f////// RECYCLED WATER AREA FAR LOMAS SAN JUAN H0A SLOPE PUBLJC WORKS 6 VRRI LES DEPARTMENT a NOTES RECYCLED WATER SERVICE CONVERSIONS - EUSING FIRE PROTECTION SEDUCE uAIN UNE . AREA PREVIOUSLY CONVERTED TO RECYCLED WATER 1. NO POTABLE WATER IN SITE NO.11 ------'-'--- CXISTNC RECYCLED WATER IRRIGATOR MAN UNE THE'CONNOR'AREAS. \ GRAPHIC SCALE LOMAS SAN JUAN PARK SLOPE •C -- .._- -- EXISTING RECYCLED WATER MAN UNE CONVERSION PLAN-1 _ RR NEW RECYCLED WATER IRRIGATION MAIN INE T T• �• �'S.v..w,om PROPERTY UNE .-- DUDE K J'*_"�.: Irl. me u,N1. i•: -.�--- SITE BWNDARY 1.rr R�r _ rIR.NXero ea:60010144 li, ...No Imm meC i EaWaXv�p&7� ER0.1r IFI LP(5)A1"-K" E MMM "�K c LSJ-1 sv 6 a®Rew: o-• m ,—,,,P'.' Ih ,\ )�\e. •-•moo_• 2 EC CMN orv.iii=n nae.a,.J v...,.a.aeJ, _ Exhibit A