19-0624_CAMPANILLA COMMUNITY ASSOCIATION_Entry License AgreementRECYCLED WATER ON.SITE CONVERSION . ENTRY LICENSE AGREEMENT
THIS RECYCLED WATER ON-SITE CO
AGREEMENT'("Agreement") is entered into as of
RSIO E NTRY LICENSE
, 2019 ("Ëffective
cipal corporation,Date") by and between the City of San Juan Ca o, a munl
("City") and Campanilla Community 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 thís 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, Ci$ currently provides potable water ("Potable Wated') to the Property for
irrigation purposes. ln lieu of Potable Water, Owner has agreed to purchase Recycled
Water from the City for the purpose of irrigating the Property.
D, lnstalled on the Properly 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, Cíty 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 rnodifications, label valves, boxes and controllers indicating recycled water use,
sígnage and other modifications as depicted on Exhibit 1'4" 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 wílling 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. ltems 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
($195.00) per acre-foot forfive (5) years of estimated water use by the applicant, with a
maximum reimbursable amount of the actual retrofit costs.
(2) Metropolitan's Program works on a first-come, first-served basis.
Applications for the Program are available online at bewaten¡vise,com beginning July 1,
098S7,00000\24493 I 65 2
2014, The applicatlon must be eubmlüed to Mefropolitan on bEhalf of lhe Owner, The
application provides an option to direc't all reimbunable amounts to the Clty.
t{ow, THEREFORE, ll{ CONSTDERATTON OF THE PROMTSES CONIAINED
HEREIN, ÎHË PARTIES AGREE AS FOLLOWS:
1. (a) Gity shalldeslgn, conEtruct and lnstall, at Clty's sole cost and expense, or
ceus€ to be deslgned. constructed and installed at Clty's sote cost and expense, thE
Modlfloations shown on Exhibit oA" on the Property.
(b) Clg, at Clty's sole cost and expense, shall secur€ or cause to be secured
all nEcEssary permlts, llcenses, approvals from all nec€Esâry govommental authorities
to construct and lnstall the Modlllcatlons on the Property .
2. Owner hereby grants to City a non-excluslve llcense to allow Cl$'s officials,
offlcers, admlnlstratons, meneg€rs, gmployees, contractors, subcontraotors, consultants,
representatlves and agents (collectively, 'Clty's Representatlves") to enter ovsr, under,
upon, along, through and acrose the Property to: (a) construct and lnstall the
Modificatlons and appurtenancss thercto; and (b) r€mov€ the appllcable portlons of the
Exlstlng Water System, along wlth the reasonable ñght of access to and from Eaíd
license for tha purposcs of exercislng thc rights granted hereln ("Êntry Llcense").
3. The term of thls Agreement shall commence upon the Ëffectlva Date, and shall
continue untll the construction and installation of Modificatlons is completed and the
provlslons in Sectlons 6 and 7 of lhis Agreement have beEn satlsfled, except that in the
event that a Wanan$ lssue arlsss pursuant to Sectlon I of thls Agreement, the term of
thls Agreement shallcontlnue untll the ooncluslon of the Remedy PerÍod.
4. City shall not permit to be enforced against the Property any mechanics líens
arlslng out of any work performed by or on behalf of the City in conneclion wfth the
construction and modlfïcatlon of the Modlfications and appurtenances lhereto or any
materlal fumlshed to thE Clty. lf any such llen ls flled agalnst tho Property, the City shall
dlscharge all such liens within a reasonable amount of tlme after an action is brought to
Enforce the same, however City may contest any such llen so long as the enforcarnent
thereof ls stayed.
5. Clty shall provlde or shall cause to ba provlded twenty four (24) hour wrltten
notice to Owner that City or City's Representatives lntend to exerclse the rlght to sntsr
Property, pursuant to thls Agreement, for purposae rElated to the constructlon and
lnstallatlon of the Modlflcatlons,
6, The City shall restore, or cause to be restored, the surface or subsurface of the
Property to the condltlon the Property was ln as of the tlme of performance of
construction and lngtâllatlon of the Modifications and such restoratlon shall be
performed wlth due dlllgence and dlspatch. Notwithstanding the foregolng, the City shall
use commerolally reasonablE efforts to restore or caur¡e restoration wlthin (slxty) 60
days of lhe constr¡c{ion and installatlon of lhe Modificatlons.
7, Upon the completion of the construct¡on and lnstallatlon of the Modlflcations, the
Clty shall transfer lhe lmprovements shown on Exhlblt "4" to lho Owner, who lhereafrer
.'
0e807.000{Xt\2¡140Íl t 65, 2
will be solely responsible to operate and maintain the system in good worklng order and
in acoordance with all State and local regulations.
8. Glty wanantri to Owner that City shall requlre Clty's agreement with any
contractor ("Contractot') hired by C¡ty to lnstall Modifications ('Contractor Agreemenf')
to require that thE Modiftcations shall be free from construction defects for a period of
twelve (12) months aftEr construction of thE Modificadons is completed (nVananty
Perlod') and that any such Contractor shall repalr or cause to bs repalred. al said
Contracto/s sole cost and oxp€nse, all fallures of the Modlllcaüons due to faulty
materials or faulty installation (\Â/ananty lssue") wlthin the foregoing Wanan$ Períod,
provided written demand to City for conection of a Warranty lssue is made by Owner
wlthin the Wananty Perlod. The Contractor Agreement shell requlre Contractor to repair
or cause to be repalred the Wananty lssue wlthin thlrty (30) calendar days after receipt
of a written notice from City. The Contractor Agreement shall requlre that, in the event
the Wananty lssue may not be remedied in the thirty (30) day period, the Contnactor
shall lnltlate such repalr wlthin such period and dlllgently and contlnuously prosecute
such repalr to cure, taklng all reasonable mitigatlon measures to protect Owne/s
employees, residents, owneft¡ and gueste and property durlng tho repalr procêss
("Remedy Period").
9. On the completion of the Modificatlons and subJect to the wananty set forth ln
Section 7 of thle Agreement, the Recycled Water Sygtem, including, without limitation,
the Modlflcations, shall be owned, operated, repalred, replaced and malntalned by
Owner, at Owne/s sole cost and expense. Maintenanc€, operation and usage of the
Recycled Water System, including the Modificatlons, shall be ln accordance wlth the
requirements of Clty's ordinances, rulês and rcgulatlons for recycled wat€r, as amended
from tlme to time.
Owner shall, at Orvner's own cost and expensg, at all tlmes keep and maíntain
the Recycled Water System, includlng the Modlfications, in fully operable and
functloning condltion. Except as othen¡vise provlded hereln, the Clty shall have no
obllgatlon, llablll$ or responsibility whatsosver wlth respect to openatlon, malntenanc€,
repair or replacemEnt of lhe Recycted Water FacilitiEs, including the Modifications.
10, Prlor to the provlsion of Recycled Water to the Properly, Owner shall obtaln a
permit from the Clty to use Recycled Water on the Property. Owner shall cornply wlth all
Glty rules, regulations, ordinances and procedures (collectlvely, nRules') wlth respect to
the usE of Recycled Water as such Rules may be modlfied from tlme.to-time.
11. (a) Owner hereby agrees that the City wlll complete the Metropolllan Program
applicatlon on Owner's bEhalf. Owner further inevocably agr€Es that all rebate funds
(reimbursable amounts) associated with the Program willbe payable to the Ci$, and the
Owner will not be Entitled to any of thE rebate funds paid to the Clty by Metropolitan.
(b) Owner agrìêês, at Ownefs sole cost and expens6, to protect, indemnlfy,
defend, and hold harmless the City and Clty's Representatlves and Metropolitran and lts
Board of Dlrectore, officers, representatives, agents and employees from and agalnst
any and all claims, losses, liabilities, damages, costs and expenses, includlng, but not
limited to, any clalms or liabíllty for lnJury or death to any person; damage to propertyy,
30s897.00@\244S3105,2
neturel resources or to the env¡ronment: water quality problems; or cross connections
with potable water) that arise out of or relate to Ownefs opemtion, repair or ownership
of the Modifications ("Clalms"). Such indemnlty shall lnclude all damages and losses
rEtated to any claim made, whsther or not a court actlon is filed, and shall includo
attomey's fees, admlnlstrative and overhead costs, engineerÍng and consulting fees and
all other costs related to or arising out of such clairn or asserted liability. The foregoing
lndernnlty ls requlrcd by Metropolitan as a condltion to rcimbursement of certain costs
pursuant to the Program es more partlcularly dEscribed in Rccltal G.
12. (a) Each lndlvldual and entity executlng thls AgreemEnt hereby represents
and warrants that hE, she or ¡t has he capacity set forth on the signature pages hereof
wlth full potivor and authorlty to blnd the Party on whose behalf he, sha or it is executing
this Agreement to thE terms hereof.
(b) This AgreemEnt is the entirE agreement between the Partles hereto wlth
reepecl to the subfect matter hereof and supersedes all prior agreementE and
understandings, whcthcr oral or wrlttcn, between the Partles wllh respect to the matters
contained in this Agreement. Any weiver, modlflcatlon, consent or acquiesconce with
respect to any provision of this Agreement shall be set forth ln writlng and duly exea¡ted
by or on bchalf of the Party to be bound lhereby. No waiver by any Parg of any breach
hcreunder shall be deemed a walvsr of any otheror subsequant breach.
(c) Thls Agreement may bg cxecuted in any number of counterparts, each of
whlch shall be dEemed an odginal, but all of whlch when takEn bgether shall constih¡te
one and thc game inshlment. The signah.rre page of any counterpart may be detactred
therefrom wlthout lmpairing the legal effect of the signature(s) thereon provlded such
signature page is attached to any other counteçart identical thEreto except having
additlonal signature pagês executed by other Parlies to lhis Agreement attach€d hereto.
(d) TlmE is of the css€nce in thc performance of and compliance with cach of
lhe provlalons and condltions of this Agreement,
(e) Any oommunicatlon, notice or demand of any ltind whatsoever which
elther Party may be reguired or may desire to give to or servo upon th6 other shall be in
writing and dcllvered by personal service (lncluding exprcss or courler servlce), by
electronic communlcalion, whethsr by ê-rñ€ll or telecopylng (lf conflrmed ln wrltlng sent
by registered or certlfled mall, postage prepald, return recelpt requested), or by
reglstered or caillfied mall, postage prepafd, rêtum recelpt requested, addressed aE
follows:
Clty Glty of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: StEve May, Publlc Works and Utllltles Dlreclor
Owner:Campanllla Community Association
C/o Crummack Huseby lnc.
25531 Commercentre Drive, Sulte 100
Lake Forest, CA 92630
409807.00û00u44g3r65,2
Phone: (949) 367-9430; E-Mail: info@ch-pm.com
Any Party may changE its address by writtEn notlce given to the other in the manner
provided ln this Sect¡on. Any such commünlcation, notlce or demand shall be deeined
to have been duly given or sErved on the date personalþ served, if by personal service,
one (1) day after thE date of confirmed dispatch, if by electronic communicatfon, or three
(3) days after belng placed in fiE U.S. mail, lf mailed.
0 This AgreemÊnt and the covenants and agreements hereln contained
shall be blndlng on, and inurE to the bensfit of, the paÊies hereto and lheir respective
heirs, succôEsors¡ and assigns.
(g) The obligations of the parties to indemnity, protect, defend and hold
harmless the other party shall survive the expiration or earlier termlnatlon of this
Agreement.
(h) The provisions of thls Agreement are for the exolusive bEneflt of the
partles and thelr successore and asslgng, and shall not be deemed to confer any rights
upon any porson, except such parties and thelr successors and assigns. No obllgatlon
of a party under thls Agreement ls enforc€able by, or iE for the benefit of, any thlrd
parties.
(l) Wherever posslble, each provlsion of thls AgreemEnt shall be interpreted
in such a rnannêr as to be valld under applicable law, but, if any provlslon of thls
Agreement shall be invalld or prohibited thereunder, such invalldity or prohibítion shell
be construed as lf such lnvalld or prohlblted provlslon had not been inserted hEreln and
shall not affect the remalnder of such provision or the remaining provlsions of lhis
Agreement,
0) The language ln all pârts of thls Agreemant shall be in all cases construed
slmply accordlng to its falr meanlng and not strictly for or agalnst any of the Parties
hereto. SEctlon headlngs of this Agreement are solely for convenlence of reference and
shall not govem the lnterpretatlon of any of the provisions of this Agreement.
References to "Sgcllons" are to Sections of this Agreement, untess othenvise
specifically provlded. Unless the context clearly reguires othenrise: (i) ths plural and
slngular shall each be deemed to include the other; (ii) the masculine, feminlne and
neutral genders shall each be deemed to include the others; (lll) "shall," ïrill," or
"agrees' are mandatory, and "mat' Ís permissive; (iv)'of is not exclus¡ve; (v) "include,'
"includes,' and "lncludlng" are not lntEnded to be restrlctive, and llsts followlng such
words shall not bo interpreted to be exhaustlve or limited to items of the same type as
those enumerated; and (vl) 'daysr" means calendar days, except lf the last day for
performanæ occun¡ on a Saturday, Sunday, or eny legal holiday, then the nExt
succeedlng business day shall be the last day for perlormanco.
(k) This Agreement shall be governed by and construed ln accordance wlth
the laws of the State of Califomia.
(l) lf any action ls brought by either Party against the other Party, the
prevalllhþ Party slrall be entltled to recover from the other Pafi reasonable attorneys'
iees, coðts and expanses incurred in connection wlth the prosecution or defense of
5008û?,00000124499 I ô5.2
YiBy
Its
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 prínting, photocopyÍng, 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) Ïhe 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 exercíse of personal
jurisdiction over them by any such courts for purposes of any such action or proceeding.
lN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by theír duly authorized represenlatives as of the date first above wrítten.
OWNER:CITY:
CITY OF SAN JUAN CAPISTRANO,
a municipal corporation
ir//¿ t¿/t/nj , City Manager
8y:
CI
(zr
Mo
609897 0000û\2,¡493 1 65,2
EXHIEIT LIST
EXHIBIT "A' DESCRIPTION OF PROPERTY / MODIFICATIONS
09807.00000u449:¡ 10s,2
EXHIBIT '.A"
DESCRIPTION OF PROPËRTY AND RECYCLED WATER
CONNECTION/IRRIBAIION SYSTEM MPROVEMENT$
[SøoAttaohmentJ
0988t 000001t¡449tl¡Ë.2
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