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Public Sector School and Park Recycled Water Connection Program Application and Agreement
Chino Basin Water Conservation District
For Customers Receiving Recycled Water Service from: City of Chino City of Chino Hills City of Ontario City of Upland Cucamonga Valley Water District Fontana Water Company Monte Vista Water District San Antonio Water Company Chino Basin Water Conservation District P.O. Box 2400, 4594 San Bernardino St. Montclair, CA 91763 909‐626‐2711
APPLICATION AND AGREEMENT TO PARTICIPATE IN CHINO BASIN WATER CONSERVATION DISTRICT PUBLIC SECTOR SCHOOL AND PARKS RECYCLED WATER CONNECTION PROGRAM
THIS APPLICATION AND AGREEMENT (“Agreement”) is made and entered into as of _______________, by ______________________________________________ (“Participating Public Agency”) to participate in the Recycled Water Connection Program of the CHINO BASIN WATER CONSERVATION DISTRICT (“CBWCD”). CBWCD and Participating Public Agency may be collectively referred to as “Parties” and individually as “Party.” Recitals A. In March 2008, CBWCD’s Board of Directors established its Recycled Water Connection Program (“CBWCD Program”), under which CBWCD has set aside a designated fund for the purpose of aiding certain public agencies in order to facilitate the implementation of immediate water efficiency measures for conservation and water recycling. The CBWCD Program is designed to provide supplementary funding to eligible public sector parks and schools within CBWCD’s jurisdictional boundaries whose irrigation systems are retrofitted to connect to a recycled water supply. Participating Public Agency is an Eligible Public Agency (as defined in Section 1.2 of this Agreement) that owns and operates parks and/or schools within CBWCD’s jurisdictional boundaries that become equipped to receive recycled water. Covenants NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth, the Participating Public Agency hereby agrees as follows: Section 1: Definitions The following words and terms, unless otherwise expressly defined in their context, shall be defined to mean: 1.1 “Project” consists of connecting irrigation systems currently operating on potable water to recycled water at Public Sites approved by CBWCD. The CBWCD Program does not apply to recycled water systems currently in existence or already under construction as of March 10, 2008. “Eligible Public Agency” shall mean the State of California, the federal government, an agency of the state or federal government, or a political subdivision of the state including a county, city and county, city, district, community college district, or school district that satisfactorily participates in (a) the CBWCD Program through this Agreement and (b) CBWCD’s Landscape Evaluation and Audit Program by execution of CBWCD’s
B.
C.
1.2
Landscape Evaluation and Audit Agreement for the Public Site. Private entities and nonprofit corporations are not eligible to participate in the CBWCD Program. 1.3 “Public Site” shall mean real property that satisfies all of the following requirements: A. A school or park, B. Located within CBWCD’s jurisdictional boundaries, C. Funded by an Eligible Public Agency, D. Owned by Participating Public Agency, E. Legally and physically capable of connecting to a recycled water supply, and F. Listed in Exhibit A, attached hereto and incorporated herein by this reference, and/or any addendum to this Agreement issued by CBWCD. 1.4 “Project Costs” shall mean the eligible capital costs incurred by Participating Public Agency for the Project at each Public Site to retrofit the irrigation system to recycled water use. Unless otherwise approved in writing by CBWCD, eligible capital costs include design, piping and appurtenances, irrigation system modifications, controls and recycled water signage. Costs for permits or other fees, Participating Public Agency staff, inspections, shutdowns, etc. are ineligible. “Program Contribution” shall mean the financial incentive in dollars CBWCD will pay Participating Public Agency for Public Site Project Costs. Unless otherwise modified by CBWCD in the exercise of its sole discretion, the Program Contribution for each Public Site, in dollars, shall be the lesser of: A. Actual Project Costs for which no financial contribution, credits, or discount is furnished from outside sources, or B. $250 per acre-foot of the average annual irrigation water use over two years as estimated by CBWCD in the exercise of its sole discretion. Section 2: Agreement Term 2.1 2.2 This Agreement is effective upon execution by Participating Public Agency and acceptance by CBWCD, and shall remain in effect until terminated by CBWCD. The Project must demonstrate continued viability by beginning construction of retrofit within 180 days from the date of CBWCD’s acceptance of the Project into the CBWCD Program. This Agreement may be amended at any time by written mutual agreement of the Parties, or by addendums issued by CBWCD.
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Section 3: Responsibility and Ownership 3.1 Participating Public Agency shall perform all acts necessary to qualify as an Eligible Public Agency under this Agreement and to achieve completion of the Project at the Public Site to the complete satisfaction of CBWCD and in full compliance with this Agreement, all applicable legal requirements, and the terms and conditions of the CBWCD Program, as amended from time to time by CBWCD’s Board of Directors. Participating Public Agency is the sole owner of all Project facilities. CBWCD has no ownership right, title, security interest or other interest in any Project facilities. Participating Public Agency is solely responsible for all design, environmental compliance [including but not limited to any actions arising under the California Environmental Quality Act (Public Resources Code §21000 et seq.)], right-of-way acquisitions, permits, construction, and cost of the Project and all modifications thereof. Participating Public Agency shall be solely responsible for operating and maintaining the Project in accordance with all applicable local, state, and federal laws. CBWCD shall have no rights, duties or responsibilities for operation and maintenance of the Project. Participating Public Agency agrees to cooperate with CBWCD’s staff to coordinate data collection management activities.
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Section 4: Funding 4.1 4.2 CBWCD at its sole discretion may discontinue and/or modify the CBWCD Program. CBWCD has fiscal responsibility to manage its budget, and hence may limit availability of funds for the CBWCD Program. CBWCD may include additional Public Sites for funding by addendum to this Agreement and may change financial incentive amounts. CBWCD may exclude a Public Site listed in this Agreement or future addendums to this Agreement from receiving Program Contribution if CBWCD determines in the exercise of its sole discretion that the Public Site should be excluded from participation in the CBWCD Program. CBWCD shall not be responsible nor bear any financial risk for any Project Costs or for completion of any Project at a Public Site.
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Section 5: Billing and Payments 5.1 Participating Public Agency or its designee _______________________ shall submit to CBWCD a summary of site specific Project Costs and any contribution, credits, and/or discounts received from outside sources for each Public Site, after initiating recycled water delivery pursuant to Section 1.4 and demonstrating operation of a complete system to the satisfaction of CBWCD in the exercise of its sole discretion.
5.2
After Participating Public Agency submits to CBWCD a summary of site specific Project Costs and any contribution, credits, and/or discounts received from outside sources for a Public Site, subject to Section 5.1 of this Agreement, CBWCD shall determine in the exercise of its sole discretion whether the Project satisfies the requirements of this Agreement for participation in the CBWCD Program. If CBWCD determines that the Project satisfies the requirements of this Agreement for participation in the CBWCD Program, CBWCD shall then calculate the amount of Program Contribution for each Public Site pursuant to Section 1.5 and issue a check to Participating Public Agency or its designee _____________________ in an amount equal to said Program Contribution as calculated by CBWCD in the exercise of its sole discretion.
Section 6: Record Keeping and Audit 6.1 Participating Public Agency and any designees shall establish and maintain accounting records of all Project Costs for each Public Site listed in Exhibit A and any future addendums to this Agreement. Accounting for the Project shall utilize generally accepted accounting practices and be consistent with the terms of this Agreement. Participating Public Agency’s Project accounting records must clearly distinguish all Project Costs from other non-related costs. CBWCD reserves the right to modify the amount of the Program Contribution for each Project Site in the exercise of its sole discretion should actual Project Costs, or any contribution, credits, and/or discounts received from outside sources, or water savings from the Project vary from the previous estimates.
Section 7: Other Terms 7.1 Participating Public Agency, on behalf of itself and its officers, administrators, agents, employees, representatives, assigns, and successors, hereby fully releases and discharges CBWCD and its directors, administrators, assigns, agents, employees, representatives, and successors (each a “Releasee” and collectively the “Releasees”) from any and all claims, demands, damages, debts, liabilities, obligations, contracts, agreements, causes of action, suits, and costs of whatever nature, character, or description, whether known or unknown, anticipated or unanticipated (collectively “Claims”), which Participating Public Agency and its above-mentioned successors now have or may hereafter have or claim to have against CBWCD and its above-mentioned Releasees arising out of or related to the Project, the Project Costs, the Public Site, this Agreement, any addendums to this Agreement and the performance by CBWCD and its above-mentioned Releasees of its obligations hereunder; specifically excluding, however, Claims arising out of, in connection with, or resulting from the sole or active negligence or willful misconduct of any Releasee. This release, notwithstanding Section 1542 of the California Civil Code, which provides that “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor,” shall act as a full release by Participating Public Agency and its above-mentioned successors of any and all Claims that may arise against CBWCD and/or its above-mentioned Releasees regarding the above whether such Claims are currently known, unknown, foreseen, or unforeseen. Participating Public Agency understands and acknowledges the significance
and consequence of such specific waiver of Section 1542, and hereby assumes full responsibility for any resulting liabilities. 7.2 Excepting the sole negligence or willful misconduct of CBWCD, Participating Public Agency shall indemnify CBWCD and each of the Releasees against, and hold them free of and harmless from, all claims, demands, damages, debts, liabilities, obligations, contracts, agreements, causes of action, suits, and costs of whatever nature, character, or description, whether known or unknown, anticipated or unanticipated, arising out of or related to the Project, the Project Costs, the Public Site, and/or any and all acts or omissions on the part of Participating Public Agency and/or its agents, contractors, consultants, and employees, and/or this Agreement and any addendums hereto and the performance by CBWCD and its above-mentioned Releasees of its obligations hereunder, and defend CBWCD and each of the Releasees from any suits or actions at law or in equity for damages, and pay all court costs and counsel fees in connection therewith. Participating Public Agency shall include the following language in its agreement with any consultant or contractor retained by Participating Public Agency to work on the Project: “(Consultant) agrees at its sole cost and expense to protect, indemnify, defend, and hold harmless CBWCD and its Board of Directors, officers, representatives, agents and employees from and against any and all claims and liability of any kind (including, but not limited to, any claims or liability for injury or death to any person, damage to property, natural resources or to the environment, or water quality problems) that arise out of or relate to Agency’s approval, construction, operation, repair or ownership of the Project. Such indemnity shall include all damages and losses related to any claim made, whether or not a court action is filed, and shall include attorneys’ fees, administrative and overhead costs, engineering and consulting fees and all other costs related to or arising out of such claim or asserted liability.” Except as set forth in Section 2.3 of this Agreement, any alteration or variation of the terms of this Agreement will not be valid unless made in writing and signed by both Parties. This Agreement constitutes the entire agreement between both Parties. This Agreement will inure to the benefit of and be binding upon CBWCD, Participating Public Agency and their respective successors. This Agreement is not assignable by either Party in whole or in part. The partial or total invalidity of one or more parts of this Agreement will not affect the intent or validity of this Agreement. Upon CBWCD’s acceptance of the application hereby submitted by Participating Public Agency, this Agreement will be deemed a contract under the laws of the State of California, and for all purposes will be interpreted in accordance with such laws. CBWCD and Participating Public Agency hereby agree and consent to the exclusive jurisdiction of the courts of the State of California, and that the venue of any action brought hereunder will be in San Bernardino County, California.
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IN WITNESS WHEREOF, the Participating Public Agency hereby consents to all of the above covenants and executes this Agreement. APPROVED AS TO FORM: PARTICIPATING PUBLIC AGENCY
______________________________ General Counsel
____________________________________ General Manager
Date:
Date:
ACCEPTANCE: This Agreement is hereby accepted by CBWCD upon the terms and conditions set forth above for funding of a Program Contribution to Participating Public Agency for the Project at the Public Site in the total estimated amount set forth below or in Exhibit A for multiple sites: Estimated Program Contribution Payments Earned and Applied as Follows: (a) Estimated Cost of Conversion: $_____________________ Provided By: ________________ (b) Acre-foot Savings: _______________________________ Provided By: ________________ Describe methodology of determining savings_________________________________________ (c) Outside Contribution/Credit/Discount: $______________ Provided By: _________________ (d) Estimated Program Contribution Earned*: $250 x Two Years Acre-foot Savings, not to exceed the cost of the conversion, less outside contribution/credit/discount: $________________ *CBWCD reserves the right to modify the Estimated Program Contribution should actual costs and water savings calculations as determined by CBWCD pursuant to Section 5.2 vary from estimated provided above. For use by CBWCD: Approved By: _________________________________ Date: ___________________________ --------------------------------------------------------------------------------------------------------------------Local Water Agency: _______________________________ Actual Conversion Costs: _________________Provided By: ____________________________ Verified By: ___________________________ Date: __________________________________ Actual Program Contribution: $____________ Date Paid: _____________ Check #:__________ Payee:__________________________________
EXHIBIT A Approved Public Sites Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: Public Agency: Site Name: Estimated Conversion Cost: Provided By: CBWCD Use: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: Local Water Provider: Site Address: Estimated Acre-foot per Year Savings: Provided By: