21-1027_SANTA MARGARITA WATER DISTRICT_Master Water Rights Transfer AgreementMASTER WATER RIGHTS TRANSFER AGREEMENT
This Master Water Rights Transfer Agreement dated October 27, 2021 ("Master
Agreement" or "Agreement") is entered into by the City of San Juan Capistrano ("City") and
Santa Margarita Water District ("SMWD"). The City and SMWD may be referred to herein in
the singular as "Party" and collectively as "Parties."
RECITALS
A. The City is a general law city created and existing under the California Constitution and
the laws of the State of California.
B. SMWD is a water district created and existing under the California Water District Law
(California Water Code Section 34000 et seq.).
C. The City and SMWD entered into that certain Annexation Agreement dated as of January
21, 2020 ("Annexation Agreement"). Pursuant to the Annexation Agreement, the City
and SMWD agreed to, among other things, negotiate in good faith and enter into a "Water
Rights Transfer Agreement" with respect to the City's water rights and the SMWD's
provision of water service to the City and its existing and future customers.
D. Concurrent with the Parties' execution of this Master Agreement, the Parties and the San
Juan Basin Authority are executing the Assignment, Assumption and Amendment
Agreement Regarding Desalter Project Implementation Agreements (Water Rights
Transfer Agreement No. 1) ("Assignment of Desalter Project Agreements") by which
the City assigns its rights, title, interest, duties and obligations in and to the San Juan Basin
Authority Groundwater Recover Project (the "Desalter Project") and the San Juan Basin
Authority's water right Permit 21074, and SMWD Assignee accepts all of the City's rights,
title, interest, duties and obligations in and to the Desalter Project and Permit 21074.
E. Also concurrent with the execution of this Master Agreement, the Parties are executing the
following agreements: Agreement For The Exercise Of City Appurtenant Water Rights
(Water Rights Transfer Agreement No. 2); Agreement Regarding Water Rights Dedicated
To Public Use (Water Rights Transfer Agreement No. 3); Agreement Regarding
Assignment And Assumption Of San Juan Hills Settlement Agreement (Water Rights
Transfer Agreement No. 4); Agreement Regarding Assignment And Assumption Of
Cotton Settlement, Mutual Release And Well Sharing Agreement (Water Rights Transfer
Agreement No. 5); Agreement Regarding Assignment And Assumption Of Recycled
Water Agreement (Water Rights Transfer Agreement No. 6). The Assignment of Desalter
Project Agreements, together with the agreements listed in this paragraph E are collectively
referred to as the "Additional Water Agreements."
F. This Agreement and the Additional Water Agreements, are intended to fulfill the Parties'
respective obligations under the Annexation Agreement to enter into a "Water Rights
Transfer Agreement."
Page 1 of 5
Master Water Rights Transfer Agreement
22522669.3
10/27/21
G. The Parties seek to incorporate the term and conditions set forth in this Master Agreement
into each of the Additional Water Agreements.
TERMS OF THE AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged,
the Parties hereto agree as follows:
1. Recitals. The Parties acknowledge that the above recitals preceding this paragraph 1 are
true and correct, and are incorporated herein as material parts of this Agreement
2. Provisions Incorporated Into Each of the Additional Water Agreements. Sections 1,
2, 3, 4, 5 and 6 of this Agreement shall be incorporated into the each of the Additional Water
Agreements.
3. CVWD and OCWD No. 4. If neither the LAFCO Approval nor the LAFCO Certificate
of Completion (as those terms are defined in the Annexation Agreement) contains a finding that
the City is the legal successor to the Capistrano Valley Water District ("CVWD") and the Orange
County Waterworks District No. 4 ("OCWD No. 4"), then the City shall be deemed to have made
a representation and warranty to SMWD that the City is the legal successor to CVWD and OCWD
No. 4.
4. Effective Date. This Agreement shall become effective on the "Annexation Effective
Date," as that term is defined in the Annexation Agreement.
5. Defense of Agreement; Indemnification. From and after the Annexation Effective Date,
SMWD shall defend, with counsel approved by the City, which approval shall not be unreasonably
withheld, indemnify and hold harmless the City from and against: (i) all liabilities, claims, costs,
expenses and judgments arising from or related to this Agreement and the matters contained
herein; and (ii) any action or proceeding to attack, review, set aside, enjoin, void or annul this
Agreement. SMWD shall also defend, with counsel approved by the City, which approval shall
not be unreasonably withheld, indemnify and hold harmless City officials, employees and agents
for any matter within the scope of the indemnification under this Section 5, to the same extent, and
subject to the same limitations, that apply to the City's obligations to defend, indemnify and hold
harmless such City officials, employees and agents under California law or applicable City
contract with those officials, employees or agents. SMWD shall not seek reimbursement or
contribution from the City for any costs, expenses or damages for, or related to, matters within the
scope of the indemnification under this Section 5.
6. Miscellaneous Provisions
6.1 Amendment. This Agreement may be amended only by a written agreement
signed by all Parties.
Page 2 of 5
Master Water Rights Transfer Agreement
22522669.3
10/27/21
6.2 Comprehension of Terms. Each of the Parties warrants and represents that he,
she and it has read this Agreement in full, fully understands each and every provision hereof, and
agrees to be bound by all of the terms and provisions set forth herein.
6.3 Construction.
(a) Unless the context otherwise indicates, words expressed in the singular shall
include the plural and vice versa and the use of the neuter, masculine, or
feminine gender is for convenience only and shall be deemed to include the
neuter, masculine or feminine gender, as appropriate.
(b) Headings of sections in this Agreement are solely for convenience of
reference, do not constitute a part of this Agreement and shall not affect the
meaning, construction or effect of the provisions of this Agreement.
(c) This Agreement has been negotiated and prepared by the Parties and their
respective counsel. The Parties agree that the rule of construction that a
contract be construed against the drafter shall not apply. In the event of any
ambiguity with respect to a term of condition of this Agreement, such
ambiguity shall not be construed for or against a Party on the basis that such
Party did or did not author the same.
(d) If any inconsistency arises in the application of this Agreement and the
Annexation Agreement, the terms of the Annexation Agreement shall
control.
6.4 Entire Agreement. This Agreement, together with all exhibits hereto, constitutes
the entire understanding and agreement of the Parties with respect to the subject matters hereof,
and integrates all of the terms and conditions mentioned herein or incidental thereto, and
supersedes all prior or contemporaneous negotiations, discussions and previous agreements
between the Parties concerning all or any part of the subject matters of this Agreement.
6.5 Execution in Counterparts. This Agreement may be executed in counterparts,
each of which, when the Parties have signed this Agreement, shall be deemed to be an original,
and such counterparts shall constitute one and the same instrument.
6.6 Governing Law and Venue. This Agreement has been negotiated and executed
in the State and shall be governed by and construed under the laws of the State, except that any
rule of construction to the effect that ambiguities are to be resolved against the drafting party shall
not be applied in interpreting this Agreement. Any action at law or in equity brought by any Party
hereto arising out of this Agreement shall be brought in the Superior Court of the State in and for
the County of Orange.
6.7 No Assignment. No part of this Agreement may be assigned by a Party to another
person or entity without the prior written consent of the other Party.
6.8 No Reliance on Others. No representations, oral or otherwise, expressed or
implied, other than those contained herein have been made by any Party, or any agent, attorney or
Page 3 of 5
Master Water Rights Transfer Agreement
22522669.3
10/27/21
employee thereof. By executing this Agreement, each of the Parties warrants and represents that
this Agreement is made and entered into without reliance upon any statements or representations
of any other Party, or in reliance upon any statements or representations made by any agents,
attorneys or employees, of any other Party.
6.9 No Third Party Beneficiary. This Agreement is not intended nor shall it be
construed to create any third -party beneficiary rights in any person or entity other than the Parties.
Nothing in this Agreement, expressed or implied, is intended to give to any person other than the
City and SMWD any right, remedy or claim under or by reason of this Agreement.
6.10 Nonfiability of City and SMWD Officials, Employees and Agents. No official,
employee or agent of the City or SMWD, acting in his or her official capacity, shall be personally
liable to the City or SMWD, or any successor or assign, for any loss, costs, damage, claim, liability,
or judgment, arising out of or in connection with this Agreement, or for any act or omission on the
part of the City or SMWD, unless such liability is permitted and provided by either California law
or the applicable City or SMWD contract with that official, employee or agent.
6.11 Notice. Any notice, request, demand or other communication under this
Agreement shall be given by first class mail or personal delivery to the Party entitled thereto at its
address set forth below, by overnight mail, as a ".pdf' attachment to electronic mail, or by telecopy
or other form of telecommunication, confirmed by telephone at its number set forth below. Notice
shall be effective either (i) upon transmission by telecopy, electronic mail or other form of
telecommunication, (ii) 48 hours after deposit in the United States mail, postage prepaid, (iii) in
the case of overnight mail, upon delivery to the addressed destination, or (iv) in the case of personal
delivery to any person, upon actual receipt. Each Party may, by written notice to the other Party,
from time to time modify the address or number to which communications are to be given under
this Agreement:
If to the City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: City Manager
Telephone: (949) 443-6315
E-mail: bsiegel i�sanjuancapistrano.arg
If to SMWD: Santa Margarita Water District
26111 Antonio Parkway
Rancho Santa Margarita, CA 92688
Attention: General Manager
Telephone: (949) 459-6590
E-mail: danf@smwd.com
6.12 Severability. If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or void, each of the remainder of the provisions shall continue in full
force and effect, unless the rights and interests of a Party under a provision have been materially
altered or abridged by such invalidation or voiding.
Page 4 of 5
Master Water Rights Transfer Agreement
22522669.3
10/27/21
6.13 Successors. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the Parties to this Agreement have caused the same to be
executed by each of their duly authorized officers as follows:
CITY OF SAN JUAN CAPISTRANO
r
By:
enj n 'egel
City Manager
SANTA MARGARITA WATER
DISTRICT
0
Charles T. Gibson
President of Board of Directors
City Clerk
AS TO
ie Osler Hastings `
Counsel
ATTEST:
Kelly Radvansky
Board Secretary
APPROVED AS TO FORM:
Edward Casey
Special Counsel
Page 5 of 5
Master Water Rights Transfer Agreement
22522669.3
10/27/21
6.13 Successors. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the Parties to this Agreement have caused the same to be
executed by each of their duly authorized officers as follows:
CITY OF SAN JUAN CAPISTRANO
LN
Benjamin Siegel
City Manager
ATTEST:
Maria Morris
City Clerk
1i � � l 1 � � i ���eJ ►�►7 !�
Stephanie Osler Hastings
Special Counsel
SANTA MARGARITA WATER ATTEST:
DISTRICT
0011
By:I-'j4b-'
Charles T. Gibson Kelly Radvansky
President of Board of Directors Board Secretary
APPROVED AS TO FORM:
Edward Casey
Special Counsel
Page 5 of 5
Master Water Rights Transfer Agreement
22522669.3
10/27/21