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HomeMy WebLinkAboutResolution 2015-188 N.C.S. 12/07/2015Resolution No. 2015 -188 N.C.S. of the City of Petaluma, California APPROVING THE FORM RECYCLED WATER SERVICE AGREEMENTS AND ASSOCIATED EASEMENTS FOR THE PETALUMA RECYCLED WATER SYSTEM AND AUTHORIZING THE CITY MANAGER TO EXECUTE RECYCLED WATER SERVICE AGREEMENTS AND ACCEPT ASSOCIATED EASEMENTS WHEREAS, the City of Petaluma General Plan 2025 recognizes the use of recycled water as a potable water offset and to meet regulatory requirements for wastewater discharge; and WHEREAS, on November 3, 2008, the City Council, by Resolution No. 2008 -206 N.C.S., certified the Program Environmental Impact Report (EIR) for the Water Recycling Expansion Program; and WHEREAS, the City of Petaluma owns and operates the Ellis Creek Water Recycling Facility pursuant to Petaluma Municipal Code Chapter 15.44- 15.76, Title 15 and other applicable law; and, WHEREAS, in order to provide recycled water to customers for irrigation and generate revenue to support recycled water system operations, the City enters into service agreements to serve properties both inside and outside City jurisdiction limits ( "Service Agreements "); and, WHEREAS, the City desires to increase the number of properties both inside and outside City jurisdiction limits that are served with recycled water; and WHEREAS, on December 7, 2015, the City Council, by Resolution No. 2015 -187 N.C.S. certified Addendum No. 1 to the EIR for the Water Recycling Expansion Program; and WHEREAS, some but not all of the future properties to be served require obtaining property owner permission to allow for the use of private property to transport and deliver recycled water; and WHEREAS, the nature of improvements related to the transport and delivery of recycled water that may be located on private property are permanent in nature, requiring easements from properties on which the improvements would be located; and WHEREAS, Section 46 of Article VII of the Petaluma City Charter requires that action providing for acquisition of property be taken by ordinance of the City Council unless the Council takes action pursuant to a general law of the State; and WHEREAS, on December 7, 2015, the City Council adopted Ordinance No. 2561 N.C.S. authorizing the City Manager to execute Recycled Water Service Agreements and accept associated easements necessary to provide recycled water; and WHEREAS, Ordinance No. 2561 N.C.S. provides that the City Council may approve form agreements, which may require property owners to grant easements to the City for the purpose of providing recycled water; and Resolution No. 2015 -188 N.C.S. Page 1 WHEREAS, Council desires to provide for more efficient use of public resources, promote fiscal efficiency, and provide necessary flexibility to manage the Water Recycling Expansion Program to effectively meet the needs of recycled water users. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS: Section 1. Findings: a. The foregoing recitals are true and correct and incorporated by reference. b. The form agreement attached hereto as Exhibit A is consistent with General Plan Policies 8 -P -5, 8 -P -9, 8 -P -11, and the (EIR) for the Water Recycling Expansion Program and its addendum because the agreement allows the City to expand recycled water service to agricultural properties within the Petaluma region, thus generating revenue to support recycled water system operations, reducing effluent discharges to the Petaluma River, reducing demands on local groundwater and surface water supplies, and improving regional water supply reliability. Section 2. The City Council hereby approves the form agreement for recycled water service, including the form of the easement to be accepted, attached hereto as Exhibit 1 and incorporated by reference. Section 3. The City Manager's authority to execute the form agreement, attached hereto as Exhibit 1, is contingent upon Ordinance No. 2561 N.C.S. becoming effective. REFERENCE: AYES: NOES: ABSENT: ABSTAIN: ATTEST Under the power and authority conferred upon this Council by the Charter of said City. I hereby certify the foregoing Resolution was introduced and adopted by the Council of the City of Petaluma at a Regular meeting on the 7th day of December, 2015, by the following vote: Albertson, Barrett, Healy, Kearney, King, Vice Mayor Miller None Mayor Glass None City Clerk as to City /� X/ �, / -i ) & �,-, ice Mayor Resolution No. 2015 -188 N.C.S. Page 2 Exhibit A AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER THIS AGREEMENT ( "Agreement ") is made this day of , between the City of Petaluma, a California municipal corporation ( "City, ") and , ( "Purchaser "). RECITALS A. Purchaser owns and /or leases approximately C C E F G. acres of real property in Sonoma County, California, identified as Assessor's Parcel No. , located at in Sonoma County ( "Property ") City owns and operates a wastewater treatment and water recycling facility, ( "City Facilities "), and collects, treats, and disposes wastewater produced within the City's service area. City Facilities produce tertiary treated recycled water ( "Recycled Water ") for irrigation purposes. City produces such Recycled Water pursuant to Order No. 96 -011 ( "Order ") of the California Regional Water Quality Control Board, San Francisco Bay Region ( "Board "). City desires to sell and Purchaser desires to purchase and use Recycled Water from City to irrigate a portion of the Property, subject to the terms of this Agreement. Purchaser intends to irrigate approximately acres of Property with Recycled Water. land on the Transmission of Recycled Water to Property requires the permission of private property owners to transmit the Recycled Water across certain private properties. Pursuant to Section 46 of Article VII of the Petaluma City Charter, on December 7, 2015, the City Council of the City of Petaluma ( "City Council ") adopted Ordinance No. 2561 N.C.S., providing for City Council approval of form agreements for the City sale of Resolution No. 2015 -188 N.C.S. Page 3 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Recycled Water, which may require the Purchaser to obtain easements in favor of the City for the purposes of transmitting Recycled Water, and authorizing the City Manager to execute said form agreements on behalf of the City, by resolution. H. This Agreement is consistent with the form agreement approved by the City Council via Resolution No. 2015 -188 N.C.S. on December 7, 2015. In consideration of the mutual agreements, terms and conditions contained in this Agreement, the parties agree as follows. 1.0 RECITALS. The recitals above are incorporated into and made a part of this Agreement. 2.0 TERM. This Agreement shall become effective on the date first above written and shall expire 10 years thereafter with the option of two 5 -year extensions based on mutual agreement of the parties hereto, unless terminated earlier in accordance with section 18.0. Purchaser and City hereby agree that any portion of this Agreement may be revised by written amendment at any time by mutual agreement of the parties hereto. 4.0 PURCHASE PRICE. (A) Recycled Water. For the term of this Agreement, the price to be paid by Purchaser for Recycled Water delivered by City shall be established by resolution of the City Council. Any rate adjustment established by the City Council will become effective immediately, and will apply to the next and subsequent deliveries of Recycled Water until further adjusted by the City Council. The current price established by the City Council for Recycled Water is $ per billing unit (__ gallons) pursuant to Resolution No. adopted on , 20 (B) At least 10 days prior to proposed adjustments to purchase prices for City Recycled Water, City shall give written notice to Purchaser of a hearing on the proposed adjustments. However, failure of the City to give or the Purchaser to receive such notice shall not invalidate any Recycled Water or water price- setting action of the City Council or its effect under this Agreement. 5.0 CONNECTION FEE. Purchaser shall pay any and all costs to make the Recycled Water connection including cost of system engineering, design, construction, installation of the Resolution No. 2015 -188 N.C.S. Page 4 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Recycled Water meter, tapping of the main, and other City expenses for connecting to the City Recycled Water system based on the size of the meter needed to provide adequate Recycled Water flow to meet requested demand at the time such connection is made. All design and construction shall meet City Standards and be approved by the City Director of Public Works and Utilities or his/her designee ( "Director "). Recycled Water connection and capacity fees (i.e. impact fees) shall not apply. 6.0 METERING AND MEASUREMENT OF FLOWS. Purchaser agrees that the City shall read the meter and record Recycled Water used at the location where Recycled Water is delivered. 7.0 PAYMENT FOR RECYCLED WATER. City shall invoice Purchaser for the cost of Recycled Water used by Purchaser on a monthly or bi- monthly basis based on meter readings. Said invoices shall be due and paid within 30 days of the date of billing. Delinquent invoices for Recycled Water and Recycled Water use pursuant to this Agreement, in addition to the provisions of this Agreement, shall be subject to penalties, enforcement and other requirements applicable to water service contained in Title 15 of the Petaluma Municipal Code, as amended from time to time. 8.0 DELIVERY AND USE OF RECYCLED WATER. (A) City Delivery. City agrees to deliver Recycled Water to Purchaser through a Recycled Water meter approved and installed by the City on Purchaser's property. From May 1 to October 31 the City operates the Recycled Water distribution system in a continuous mode. From November 1 to April 30 the City operates the Recycled Water distribution system as needed or as agreed upon by City and Purchaser. (B) Minimum Annual Recycled Water Usage. Purchaser agrees to use and the City agrees to deliver a minimum of acre -feet of Recycled Water annually, which shall be referred to herein as the "Committed Volume." Failure to use the Committed Volume will result in billing by the City for an amount of Recycled Water equal to the difference between Purchaser's actual use and the Committed Volume, which billing shall be due and payable so long as such failure by Purchaser to use the Committed Volume is not due to a lack of or interruption in supply, failure of delivery systems or other limitations on availability as described in Section 9.0 hereof; or is not due to early termination of this Resolution No. 2015 -188 N.C.S. Page 5 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Agreement as described in Section 18.0 herein. (C) Maximum Flow Rate. The maximum flow rate of Recycled Water the Purchaser is permitted to use shall be gallons per minute. This rate may be adjusted upon mutual consent of the Purchaser and the Director. (D) Maximum Weekly Allocation. The maximum weekly volume of Recycled Water the Purchaser is permitted to use each week shall not exceed acre -feet. A week is defined as Sunday through Saturday. This amount may be adjusted upon mutual consent of the Purchaser and the Director. (E) Maximum Annual Allocation. The maximum annual volume of Recycled Water the Purchaser is permitted to use during each calendar year shall not exceed acre - feet, without mutual consent of the Purchaser and the Director. (F) Irrigation Line and Irrigation Equipment. Purchaser's use of Recycled Water must be in accordance with all of the following: (1) Permits. Permits include-of the following (a) the National Pollution Discharge Elimination System (NPDES) permit, or successor permit, establishing requirements for the discharge of City treated wastewater into the Petaluma River, and (b) the General Water Reuse Order No. 96 -011, or successor permit, establishing requirements for reuse of City Recycled Water, as may be issued, modified or reissued by the Board or successor governmental agency ( "Permits "). (2) Connection to City Pipeline. Purchaser shall design, construct, purchase and install the pipeline from the point of connection to the City's existing Recycled Water distribution piping downstream of the City's meter (i.e. Purchaser's responsibility begins at the outlet of the meter) including box, approved Recycled Water meter, pipes, valves, pressure regulator and any other appurtenances necessary to receive Recycled Water from the City's pipeline. Location of connection to City's Recycled Water pipeline shall be as approved by City and shall be in compliance with City Standards. (3) Hose Bibs. No hose bibs shall be connected to Recycled Water pipeline, including the Purchaser's Recycled Water service lines. (4) Runoff. Purchaser's on -site irrigation system must be configured and Resolution No. 2015 -188 N.C.S. Page 6 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER operated to prevent runoff from leaving areas of the Property irrigated with Recycled Water. (5) Identification Tags. All meters, valves, blowoffs, and controllers shall be identified using Recycled Water identification tags, T. Christy Enterprises 3150, or equal. Tags shall be weatherproof plastic, 3 -inch by 4 -inch, purple in color with the words "RECYCLED WATER — DO NOT DRINK," or similar printed on one side, and "AQUA IMPURA — NO TOMAR," on the other side, or similar as approved by the Director. (6) Plans. Purchaser shall prepare and submit plans for connection to City's Recycled Water pipeline for portions owned and installed by Purchaser up to the point of connection to the City's Recycled Water system (the outlet of the Recycled Water meter). Director shall review plans and establish conditions of approval. (G) Water Pressure. It is estimated that the pressure of Recycled Water delivered by City will be approximately psi. However, the City makes no guarantee concerning the pressure of delivered Recycled Water. The City expressly disclaims any guarantee, warranty or representation that the Recycled Water delivered by the City will conform to any particular pressure requirements of Purchaser's facilities. Purchaser understands and agrees that Purchaser must install pressure regulators, pumps, and any and all other appurtenances or equipment necessary to produce and maintain necessary Recycled Water pressure for Purchaser's system. (H) Purchaser's Maintenance Responsibility. Purchaser shall operate, maintain and repair all Recycled Water pipeline and appurtenances downstream (on the Purchaser's side) of the City's Recycled Water meter connecting the City Facilities to the Purchaser's irrigation system. (I) City's Maintenance Responsibility. Subject to the terms of this Agreement, City shall operate, maintain and repair City's Recycled Water facilities and pipelines up to and including the Recycled Water meter installed by City connecting the City Facilities to the Purchaser's irrigation system. (J) On -Site Supervisor. Purchaser shall designate in writing an On -site Supervisor who is responsible for the safe and efficient operation of the Purchaser's Recycled Water Resolution No. 2015 -188 N.C.S. Page 7 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER system. On -site Supervisor shall be knowledgeable about all facets of Purchaser's irrigation system, including regulations, layout of the system, and maintenance. Purchaser and On -Site Supervisor shall be trained and certification shall be provided by the Purchaser to the City as to the qualifications and training of the on -site supervisor, to the satisfaction of the Director. 9.0 CONDITIONS PRECEDENT AND LIMITATIONS ON DELIVERY OF RECYCLED WATER. (A) Easement. Prior to the delivery of Recycled Water to the Purchaser, at no cost to the City, the Purchaser shall secure any and all easements in favor of the City, free and clear of any encumbrances, except those accepted by the Director, in a form substantially in accordance with Exhibit A attached hereto, as deemed necessary by the Director for City installation, construction, operation, or maintenance of City's Recycled Water facilities and pipelines and their respective appurtenances and for the transmission of Recycled Water on, above, or through private property, whether owned by Purchaser or a third party. City shall have no obligation to deliver Recycled Water until said easements, if any, have been granted in favor of the City, delivered to the City, and recorded. (B) Limitations. Notwithstanding any requirements in this Agreement for either party to deliver or accept Recycled Water, the parties understand and agree that delivery or acceptance of Recycled Water may at times be precluded, impracticable, or otherwise prevented or infeasible for reasons beyond the reasonable control of either party. City will not be obligated to provide and Purchaser will not be obligated to accept Recycled Water when delivery or acceptance is prevented by a cause beyond either party's reasonable control, including, but not limited to: acts of God, shortage of Recycled Water, malfunction of either party's system, temporary imbalance of Recycled Water in the various storage ponds comprising part of the City Facilities, changes in applicable discharge or monitoring requirements, a determination by any regulatory agency that Recycled Water is not suitable for the intended use, crop failure or other problem with the crop or agricultural improvements related thereto which would reasonably preclude use of Recycled Water, or a determination or allegation by a body of competent jurisdiction that the use of Recycled Water pursuant to the Agreement is unlawful. The parties agree to cooperate in good faith in case of an event that wholly or partly excuses delivery or use of Resolution No. 2015 -188 N.C.S. Page 8 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Recycled Water pursuant to this provision to fulfill the purposes of this Agreement and to restore delivery and use of Recycled Water as soon as reasonably practicable. City agrees to use reasonable efforts to provide Purchaser with 24 hours advance notice of anticipated interruptions in service due to construction, repairs or other causes within the City's control. (C) Allocation of Limited Supply of Recycled Water. Purchaser understands and agrees pursuant to this provision 9.0 that City does not and cannot guarantee to Purchaser uninterrupted supply or use of Recycled Water. In accordance with this Agreement, City will use reasonable efforts to supply to Purchaser and Purchaser will use reasonable efforts to use Recycled Water so that Purchaser can use at least the minimum required purchase pursuant to provision 8.0(B) of this Agreement. In the event of a Recycled Water shortage for any reason, City will use reasonable efforts to equitably distribute available Recycled Water to users, including Purchaser, who have entered into Recycled Water purchase and use agreements with City. Purchaser understands and agrees that in case of a Recycled Water shortage, City may, in City's sole discretion, set a Recycled Water delivery schedule and allocate available Recycled Water giving preference to users based on the seniority of the user's agreement for purchase and use of Recycled Water with the City, based on the volume of water required by the user, or by any other method. City - determined Recycled Water delivery schedules and flow rates will govern availability to purchase Recycled Water under this agreement. If Purchaser fails to comply with Recycled Water delivery schedules in accordance with this section, the Delivery and Use of Recycled Water terms of the agreement may be amended, or this agreement terminated. City may restrict Purchaser's delivery hours to certain hours or days to accommodate Recycled Water system demands. Purchaser may have to install Recycled Water storage facilities to ensure that sufficient Recycled Water is available to Purchaser when needed or to utilize maximum delivery amounts specified herein. 10.0 MONITORING. Purchaser will be solely responsible for managing and monitoring the storage and distribution of Recycled Water under the control of Purchaser downstream or on the Purchaser's side of the City irrigation meter. So long as this Agreement remains in effect and as a condition of receiving Recycled Water pursuant to this Agreement, Purchaser hereby grants City, acting through its duly authorized employees, agents and Resolution No. 2015 -188 N.C.S. Page 9 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER representatives, reasonable access to the Property for the purpose of sampling, meter reading, and observing as reasonably required, Purchaser's use of Recycled Water. City will use reasonable efforts to provide Purchaser (or a representative) with reasonable prior notice of any such observation on the Property and will allow Purchaser to be present during any such access pursuant to this provision and will use reasonable efforts to avoid interfering with Purchaser's operations on the Property. 11.0 PURCHASER OBLIGATIONS CONCERNING SUITABILITY OF RECYCLED WATER. (A) Regulatory Agencies. City and Purchaser understand and agree that all Recycled Water delivered to Purchaser pursuant to this Agreement shall be subject to the current and future water recycling requirements established by the Permits and other applicable requirements. City will make available to Purchaser upon request such test reports as are periodically required of City by regulatory agencies to characterize the Recycled Water. The results of these tests are maintained at the City's Department of Public Works and Utilities. (B) Recycled Water. Purchaser and City understand that Recycled Water delivered by City may contain algae and other constituents which, if not removed, may adversely impact Purchaser's irrigation or other equipment. It is Purchaser's responsibility to install and operate equipment as necessary to remove constituents in Recycled Water delivered pursuant to this Agreement that may impact Purchasers' irrigation or other equipment. It is Purchaser's responsibility to properly manage and dispose of material removed from Recycled Water by Purchaser's equipment. (C) Suitabili . Purchaser understands and agrees that Recycled Water delivered by City is produced through treatment of wastewater. It is Purchaser's responsibility to determine and confirm that quality of Recycled Water delivered by City is consistent with water quality and other requirements that apply to Purchaser's use of Recycled Water, including, but not limited to, the requirements of crops Purchaser intends to irrigate with Recycled Water. 12.0 RECYCLED WATER APPLICATION RESTRICTIONS. Purchaser agrees as a material term of this Agreement to use Recycled Water in compliance with all applicable laws, ordinances, or regulations now in effect or hereafter enacted or adopted. Purchaser agrees to notify City of known violations of laws and/or regulations, or damage to City irrigation Resolution No. 2015 -188 N.C.S. Page 10 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER facilities or other property within 24 hours of discovery of such violation or damage. Purchaser shall be solely responsible for the cost of repair for damage caused by Purchaser or Purchaser's employees, agents, or contractors or others acting on behalf of or under Purchaser's control arising from or related to use of Recycled Water pursuant to this Agreement. If Purchaser does not comply with laws, ordinances, or regulations governing the use of Recycled Water pursuant to this Agreement, in addition to and not in lieu of any other remedies available to the City pursuant to this Agreement or applicable law, City may immediately cease Recycled Water delivery pursuant to this Agreement and terminate this Agreement and so notify Purchaser. In City's sole discretion, City may, but is not required to, grant Purchaser a reasonable time within which to cure and correct any non- compliance concerning use of Recycled Water pursuant to this Agreement. If City grants Purchaser time within which to cure and correct any non - compliance concerning use of Recycled Water, and Purchaser fails to cure such non - compliance within the specified time, the City may in its sole discretion terminate this Agreement and so notify purchaser. 13.0 TRAINING. Purchaser is responsible for ensuring that Purchaser's Recycled Water system maintenance, irrigation, management and operations staff and any others that may come into contact with Recycled Water on the Property understand the presence of Recycled Water on the Property, that Recycled Water is not for consumption purposes, and the safe use of Recycled Water and operation of the Recycled Water system. On -Site Supervisor shall be trained and certification shall be provided by the Purchaser to the City as to the qualifications and training of the on -site supervisor, subject to acceptance and approval of the City. 14.0 AGREEMENT NOT TRANSFERABLE. Neither City nor Purchaser shall assign, subcontract or transfer any interest in the Agreement without the prior written consent of the other, and any purported assignment, subcontract or transfer without such consent shall be void. Any assignment, subcontract or transfer approved by City shall be subject to all terms and conditions of this Agreement. 15.0 INDEMNIFICATION. To the maximum extent permitted by law, Purchaser agrees to, at its own expense, protect, indemnify, defend with counsel acceptable to City (which acceptance will not be unreasonably withheld) and hold harmless the City and its officers, Resolution No. 2015 -188 N.C.S. Page 11 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER officials, employees, agents, and volunteers from and against any and all alleged or actual liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties, fines, judgments, awards, costs and expenses (including, without limitation, claims expenses, reasonable attorney's fees and costs of litigation) of every nature, whether actual, alleged or threatened, arising out of or relating to the use of Recycled Water pursuant to this Agreement or the breach of any provision of this Agreement or the Order or the Permits by Purchaser or its directors, officers, officials, agents, employees, volunteers or others acting on Purchaser's behalf or under Purchaser's direction. Notwithstanding the foregoing, Purchaser's obligation to protect, indemnify, defend and hold harmless pursuant to this provision shall not apply to the City's sole negligence to comply with the requirements of the Order, the Permits, or other applicable legal requirements. Purchaser's responsibility of such defense and indemnity obligations shall survive the termination or completion of this Agreement for the fall period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. 16.0 METHOD AND PLACE OF GIVING NOTICE. Except as otherwise specified in this Agreement, all notices sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (1) personal delivery, in which case notice is effective upon delivery; (2) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (3) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (4) facsimile or email transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first -class or certified mail or by overnight Resolution No. 2015 -188 N.C.S. Page 12 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile or email shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a non - business day. City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Telephone: (707)778 -4360 Facsimile: (707)778 -4554 RIT I ,I Director of Public Works and Utilities City of Petaluma 202 North McDowell Boulevard Petaluma, California 94954 Telephone: (707)778 -4546 Facsimile: (707)778 -4508 Purchaser: Telephone: Email: Attn: 17.0 MISCELLANEOUS PROVISIONS. (A) No Waiver of Breach. The waiver by either party of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision for any subsequent breach of the same or any other term or promise contained in this Agreement. (B) Uncertainty. This Agreement is the product of negotiation and compromise on the part of both parties. The City and Purchaser agree, notwithstanding Civil Code Section 1654, that in the event of uncertainty, the language is not to be construed against the party Resolution No. 2015 -188 N.C.S. Page 13 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER causing the uncertainty to exist. (C) No Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to create and the parties do not intend to create any rights in third parties. (D) Merger. This Agreement constitutes the entire Agreement between the City and Purchaser. 18.0 TERMINATION. Except as expressly set forth herein, should one party breach any of the terms or conditions of this Agreement, the non - breaching party may provide written notice of such breach and the effective date of termination of this agreement to the other party. In addition, and notwithstanding any term or provision of this Agreement, if (i) Purchaser at any time determines that the Recycled Water is not suitable for intended use, or otherwise damages, or has the potential to damage the Property or improvements thereon (including, without limitation, any vineyards, vines, grapes or other crops), (ii) Purchaser is restricted or prohibited from using such Recycled Water for intended use; or (iii) Purchaser has secured an alternative source of water for the Property; then in any such event, Purchaser shall have the right to terminate this Agreement, without fee, penalty or liability, upon sixty (60) days written notice to the City. 19.0 INSURANCE. Purchaser shall, prior to this Agreement taking effect and throughout the term of this Agreement, maintain and provide evidence of insurance as set forth in Exhibit B, which is attached and made a part of this Agreement. 20.0 SPECIAL CONDITIONS. The following special conditions apply to this contract: IN WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above written. Resolution No. 2015 -188 N.C.S. Page 14 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER CITY OF PETALUMA City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney APPROVED: Director of Public Works & Utilities APPROVED: Risk Manager APPROVED: Finance Director Attest: City Clerk, City of Petaluma PURCHASER MA Title Address City State Zip Taxpayer I.D. Number Petaluma Business Tax Receipt Number Resolution No. 2015 -188 N.C.S. Page 15 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Exhibit A Sample Easement Deed Distribution Easement (Rev. 01111) RECORDING REQUESTED BY AND RETURN TO: CITY OF PETALUMA 11 English St. Petaluma, CA 94952 Location: City/Uninc: Recording Fee: _ Document Transfer Tax $ [ ] This is a conveyance where the consideration and Value is less than $100.00 (R &T 11911). [ ] Computed on Full Value of Property Conveyed, or [ ] Computed on Full Value Less Liens & Encumbrances Remaining at Time of Sale Signature of declarant or agent determining tax SPACE ABOVE FOR RECORDER'S USE ONLY EASEMENT DEED , a , hereinafter called Grantor, hereby grants to the CITY OF PETALUMA, hereinafter called Grantee, the right from time to time construct, reconstruct, install, inspect, maintain; replace, remove, and use facilities of the type hereinafter specified, together with a right of way therefor, within the easement area as hereinafter set forth, and also ingress thereto and egress therefrom, to, from, over, across, "through, and beneath the lands of Grantor situate in the County of Sonoma, State of California, described as follows: (APN The parcel of land described as , said portions being more particularly described as follows: insert description Excepting therefrom insert description. The facilities may include such underground recycled water lines and all appurtenant facilities to transport recycled water together with rights to perform excavation and earth moving to maintain recycled water line, located within the parcels of land described in Exhibit "A" attached hereto and made a part of hereof. Grantor further grants to Grantee the right, from time to time, to trim or to cut down any and all trees and brush now or hereafter within said easement area, and shall have the further right, from time to time, to trim and cut down trees and brush along each side of said easement area which now or hereafter in the opinion of the Grantee may interfere with or be a hazard to the facilities installed hereunder, or as Grantee deems necessary to comply with applicable state or federal regulations. Grantor shall not erect or construct any buildings or other structure or drill or operate any well within said easement area. Resolution No. 2015 -188 N.C.S. Page 16 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Distribution Easement (Rev. 01111) Grantor further grants to Grantee the right to assign to any public utility as defined in Section 216 of the California Public Utilities Code the right to install, inspect, maintain, replace, remove and use communications facilities within said easement area (including ingress thereto and egress therefrom). The provisions hereof shall insure to the benefit of and bind the successors and assigns of the respective parties hereto. Dated: Resolution No. 2015 -188 N.C.S. Page 17 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Distribution Easement (Rev. 01/11) State of California County of On .before me, Here insert name and title of the officer personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledge to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of the Notary Public CAPACITY CLAIMED BY SIGNER [ ] Individual(s) signing for oneself/themselves [ ] Corporate Officer(s) of the above named corporation(s) [ ] Trustees) of the above named Trust(s) [ ] Partner(s) of the above named Partnership(s) [ ] Attorney(s) -in -Fact of the above named Principal(s) [ ] Other Resolution No. 2015 -188 N.C.S. Page 18 AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER Exhibit B Insurance Requirements Resolution No. 2015 -188 N.C.S. Page 19