HomeMy WebLinkAboutMendocino County Russian River Flood Control and Water Conservation Improvement District 2004-11-02 I �
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UNIFORM WATER SUPPLY AGREEMENT �
THIS WATER SUPPLY AGREEMENT (Agreement), entered into as of the latest '
of the dates shown opposite the signatures of the Parties to this Agreement, is made
by and between CITY oF UxIAH (hereinafter "Custome�') and
�, MENDOCINO COUNTY RUSSIAN RIVER FLOOD CONTROL AND WATER
CONSERVATION fMPROVEMENT DISTRiCT organized and operating pursuant to
Water Agency Acts Chapter 54 (the "DistricY'). Customer and Distrid are sometimes
referred to herein individually as a "Party' and collectively as the "Parties° The Pacties
hereby mutualty agree to and confirm the following:
RECITALS
A. District is an improvement district organized and operating pursuant to the
provisions of Chapter 54 of the Water Agency Acts entitled the Mendocino County '
Water Agency Act. Pursuant to Sections 101 and 102 of that Act, the District has all �
the rights, duties, powers, liabilities, purposes, privileges, and immunities conferred and '
specified by the Act on the Mendocino County Water Agency. Chapter 54 Section 3(s)
I of the Act provides that District, as an improvement district within the Mendocino
County Water Agency, has the power"to divert aroduce store transmit, distribute, and
sell or otherwise fumish surface waters and groundwaters for beneficial uses within or
without the Agency".
B. The District has been granted the right to divert East Fork Russian River water, �I
redivert water released from storage in Lake Mendocino, and withdraw water from �!,
' storage in Lake Mendocino in a total amount not to exceed 8,000 acre feet per year
� pursuant to Decision D-1030 and Permit No. '12947B issued by the California State
Water Resources Control Board (hereinafter"Project Water').
C. Historically, the District, since securing its water rights pursuant to the provisions
; of SWRCB Decision 1030 and Pertnit No. '12947B, has provided to individual
custvmers an amount of water annually that each of those customers has put to
beneficial uses. For over forty years, these annual allocations of the DistricYs water
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supply have been beneficially used by the DistricYs customers and reported to the I
appropriate govemmental and regulatory agencies. Those beneficial uses include �I
permanent orchards, vines, vineyards, and existing and long-established agricultural,
residential, commercial, and industrial uses that have greatly benefited and will
continue to benefit and sustain the economy, the environment and environmental ,
resources, the livelihoods, the health and safety, the jobs, and the communal and moral I
integrity of the residents of Mendocino County.
D. Within the past several years and due, in part, to diminishing or threatened ,
altemate water allocations and supplies from other sources of Russian River water, the '!
District has received and is experiencing increased and new requests and demands for
the use of its water to a greater extent than its current water supplies can satisfy. The I
District desires to conserve its water supply and to provide for and satisfy the historic
needs of the existing and continuing beneficial uses of its water by its long-tertn
customers referenced above before it develops or allocates existing or new water �I
supplies for new or expanded areas or uses. Consequently, the District has adopted
Ordinance No. 00-1.
E. The District has adopted Ordinance No. 00-1 and Resolution No. 04-03 which �
provide a method by which Customers who wish to purchase a specific amount of the
DistricYs Project Water may file an application with the District to purchase such water
and, upon approval of the application by District, enter into a Water Supply Agreement
which provides that the Customer will install at its own expense a water meter or meters
to measure the quantity of Project Water to be sold by the DisVict to each such
Customer. I
F. The purposes of said Ordinance and said Resolution are to provide a method by �
which the District can properly promote conservation and conserve its water resources,
can accurately measure the amount of its Project Water used by each of its Customers, �I
and can sell such water to its Customers, for their sole properties or services areas, in
order to acquire funds sufficient to pay for the DisVicc's operational and administrative
costs and to finance acquisition of additional water supply to meet current and �,
increased demand for water necessitated by growth within the DistricPs jurisdictional II
boundaries and designated places of use. In order to implement these purposes, the ;
District finds that it is in the public's interest to accept written applications from its
Customers, who wish to utilize a specific amount of Project Water, to enter into Water
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Supply Agreements in the form of this Agreement by which the District will agree to
supply a specific amount of Project Water to each Customer submitting an application
(for the Customer's consumptive use) for a period to be reflected in this Agreement and
made a part in consideration for each such Customer agreeing to install at its own
, expense a water meter at each of Customer's Service Connections for the purpose of I
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measuring the specific amount of Project Water utilized by each such Customer and I
" e cre foot urchase rice to be char ed" for water ursuant to I
payment of the p r a p p 9 P
Section 2 hereof. The amount of water agreed to be provided is not guaranteed and
the availability of said water is based on the type of water year as designated in State
Water Resources Control Board Decision D-1610 and explained in Section 9 below.
The purpose of this Water Supply Agreement is (1) to enable the DisVict both to
accurately measure the demand for and usage of its Project Water by its customers
during the terms of this agreement and to charge its customers for said Project Water
and (2) to allow the DistricYs Customers to utilize and consume a specific quantity of
Project Water for uses specified in the District's water rights pertnits upon payment to
the District of the required water charges.
G. Customer is a public water agency and/or individual which seeks to acquire a
water supply for ali of its historic and long-tertn uses, inciuding its domestic uses and
consumption and its agricultural uses, from the DistricYs Project Water, and which
hereby acknowledges, confirtns and agrees to comply with and uphold both the
aforementioned Ordinance and Resolution.
H. District expects to have a quantity of Project Water available for delivery to ,
Customer during the tertn of this Agreement. �
I. To accomplish the foregoing objectives of the parties, District is willing to supply,
and Customer is willing to pay for, receive and consume a specific quantity of Project 'I
Water that it has historically used under the terms and conditions set forth in fhis
Agreement.
J. The purpose of this Agreement is to set foRh the tertns and conditions under
which Customer will take delivery from District of a specified quantity of Project Water
for Customers consumptive use pursuant to the beneficial uses allowed under the
DistricYs permit and Califomia law as in effect on the effective date of this Agreement.
The Project Water delivered by District to Customer pursuant to the tertns of this
Agreement shall be acquired by District pursuant to those water rights by which District
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is entitled to 8,000 acre feet per year of water stored in Lake Mendocino pursuant to '
Pertnit No. '12947B, and this Agreement shail have no effect on DisVicYs water rights I
described in said Permit No. 12947B. The Parties hereto do not intend, and under this I
Agreement do not in any manner or way transfer, assign, encumber, or grant to
Customer any ownership interest or control over any of DistricYs water rights. As part of
the consideration for District in this Agreement, Customer promises and agrees to use I
DistricYs water only pursuant to and in compliance with each and all of the
requirements and provisions of Permit No. 12947B, Califomia Law, and D-1030. ��
K. The Parties acknowledge that this Agreement will not become effective unless �
and until District has obtained any and all necessary authorizations, consents, and
permits from certain govemmental and public agencies necessary, if any, to deliver
Project Water to Customer.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Parties hereto agree as follows:
SECTION 1 - DELIVERY OF PROJECT WATER
1. Subject to the terms and conditions hereof and to satisfaction and occurrence of
all of the conditions precedent to the effectiveness of this Agreement set forth herein,
District will cause to be delivered to Customer up to a maximum of s n n acre-feet of I
Project Water at the Customer's Service Connection during the term of this Agreement.
Customer agrees to properly install and maintain at its own expense appropriately sized
water meter(s) at its Service Connections to accurately measure its usage of Project
Water as a condition precedent to accepting delivery from District of that quantity of
Project Water specified herein and further, agrees to pay for, purchase, use, and
consume the water that customer diverts during the DistricYs water year in which it was I
diverted pursuant to the provision herein. I
2. The Parties hereto agree that at the termination of this Agreement neither the
terms of this Agreement nor the conduct of the Parties and performance of this
Agreement confers upon Customer any legal or equitable right or claim to the Project
Water delivered.
3. Project Water subject to this Agreement shall be delivered to Customer at its
Service Connection located on the Russian River for use upon or within Customer's �
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real property, or within Customers service area if Customer is a regulated public or �I
private agency, corporation, or municipal entity, created pursuant to the Califomia
Constitution, statute, or regulations of the Califomia Public Utilities Commission and
which is legally authorized to sell and deliver water to its customers.
4. Customer acknowledges and agrees that this Agreement is a contract for the
delivery of Project Water from the District during the Tertn. The quantity of Project
Water delivered pursuant to this Agreement shall be measured by meter(s) to be
installed at the location(s) where Customer proposes to divert Project Water from the
District's public water system in the Russian River, as the case may be (the "Service
Connedion"). Prior to the effective date of this Agreement, Customer agrees to fumish
and install meters of appropriate size at the Service Connection at Customer's sole cost
and expense. The meters shall remain the property of Customer. District, as part of
this Agreement, is granted and reserves the right to read, inspect, test, and to require �
Customer to service said meters, if necessary, at any time. Customer shall have and
accepts the obligation to maintain the meter in good working order for the benefit of the
District at all times. Failure to install the aforementioned meters by the date specified
shall cause this contract to be void and tertninated. I
5. If deliveries of Project Water under the provisions of this Agreement are
prevented, delayed, or made impracticable due to extended drought, flood, fire,
earthquake, or other natural disaster, federal or state regulatory limitations, strike,
unavailability of necessary materials, electrical power or fuel, civil rioting, war or military '
conflict, inability of District to obtain any approval for conveyance of Project Water from
any govemment agency, including without limitation the State Water Resources Control
Board ("SWRCB�, or if the cost of complying with any environmental requirements I
renders this transaction economically or physically impractical (collectively a Force
Majeure Event), District shall not be required to deliver and Customer shall not be �
required to accept that portion of the Project Water the delivery of which has been I
prevented, delayed or made impracticable, for the period of prevention, delay or
impracticability. Project Water not delivered as a result of such prevention, delay or �,
impracticability may be delivered to Customer on a make-up basis on a schedule to be
reasonable and agreed upon by the Parties, if such deliveries can legally be made up i
by the end of the Tertn of this Agreement. i
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6. Customer shall have the physical control of the taking of water from the Russian '
River at the point of its Service Connection. Customer shall bear all expenses of such
taking, including but not limited to the fumishing and maintenance of intake facilities on
the Russian River and shall obey the rules and regulations of the Corp of Engineers
and any other public authority with jurisdiction over the installation and maintenance of
such facilities. Customer shall provide to District meter readings reflecting the total
amount of water used by Customer from the Russian River. Said meter readings shall
be provided on the first of each month and at such other intervals as may be requested
by District or its authorized representatives.
SECTION 2—PER ACRE FOOT PURCHASED PRICE TO BE CHARGED
7. Customer shall pay the "per acre foot purchase price to be charged" to the
District in the amount of $ 23.00 per acre foot for each acre foot of Project Water
which District contracts to deliver and that Customer diverts as specified in Paragraph 1 I
of this Agreement, whether such Project Water is actually used by Customer or not.
Customer and DisVict mutually hereby accept and agree that the annual "per acre foot
purchase price to be charged" shall be calculated and adopted by resolution annually
by the District, as follows: The "cost of administration° of the District in entering into,
administering, and managing its water and Water Supply Agreements with Customers
for each water year shall be divided by its 8,000 acre foot entitlement, or such other
sum as is reserved to the District pursuant to State Water Resources Control Board
Decision D-1030, or amendments thereto, to determine the DistricPs costs of
administration for each acre foot. The "cost of administration" of the District in
administering and entering into the subject "Water Supply Agreements" shall include
the following: (a) all of the DistricYs costs of preparing and reviewing, the costs of
processing, and ail administration costs of evaluating Customer's Application to enter
into the Water Supply Agreement; (b) all of the DistricYs costs of administering and i
monitoring the installation of water meters by Customers as required by the terms of
this Agreement; (c) ail of the DistricPs annual administrative costs, including but not li
limited to all monitoring and legal costs, and all of the District's annual environmental
review and/or mitigation costs, including engineering and consultants costs and those
costs involved in analyzing and responding to Customer Applications, and all costs
' encompassed in the managing, operating, monitoring, developing, expanding,
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preserving and defending, and administering of the DistricYs water system(s) and I
facilities, water supplies, and the Delivery of Project Water to Customer pursuant to the
tertns of this Agreement; (d) all costs of water meter inspection, water meter reading, I
water meter testing, and all costs of all administrative, operational, and regulatory
reporting, and compliance requirements, entitlements, obligations, or duties. The total
"per acre foot purchase price to be charged° payable by Customer pursuant to the
terms of this Agreement is the charge per acre foot times the number of acre feet of '
Project Water diverted by Customer as set forth in Section 1 hereof.
8. The "per acre foot purchase price to be charged" is due and payable monthly by
Customer to District after this Water Supply Agreement is accepted by the District and
both parties execute this Agreement. Customer's obligation to pay the "per acre foot
purchase price to be charged°, which will be due pursuant to this Agreement and upon
diversion of water by Customer, shall be an absolute unconditional obligation of
Customer, not subject to deduction, setoff, prior notice, demand, or inability of
Customer to use, store or resell Project Water after delivery and diversion by Customer.
Customer shall have no obligation to accept delivery of any Project Water in excess of
the maximum amount diverted by Customer as specified in Section 1 hereof. Pursuant
to the provisions of Paragraph 1, Section 'I herein, the maximum amount of water that
may be delivered to Customer shall be snn acre-feet annually. Because the
demands for District water resources generally exceed the District's supplies and after
the first full calendar year of this Agreement, and every year thereafter, the District shall
review the total annual use of the DistricYs water by Customer. If the annual use of
District's water by Customer, based upon monthly meter readings and monthly billings,
is less that the amount of water reserved for Customer, as referred to in Paragraph 1,
Section 1 of this Agreement, the District shall reduce Customers reserved water
allotment to reflect actual use in the prior years. The unused water will then be made
available to other water users at the sole discretion and determination of the District for
the maximum beneficial use of the DistricYs water resources.
SECTION 3 - TERM
9. The Term of this Agreement and for the delivery of Projed Water pursuant to
this Agreement shall commence on ���� , 2004, the Effective Date, and
shall continue through December 31, 2010, the Tertnination Date, subject to the
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renewal provisions provided for herein. Either party to this Agreement may provide to
the other party Notice to Tertninate this Agreement subject to the following terms:
a. Upon the 31s' of December of each calendar year after the
Effective Date of this Agreement, if neither party to this Agreement has
� submitted to the other party a Notice to Terminate this Agreement in the
prior 12 months, this Agreement and ali of its terms shall be
automaticaily be extended for an additional 12 months ('I year) beyond
the Termination Date in effect on the aforementioned 31�' of December.
b. Any Notice to Terminate this Agreement, except for breach of its
terms, shall be personally delivered by the party which seeks to
tertninate this Agreement to the other party not later than 5 P.m. (PST) '
on the 30'h of December, five (5) years prior to the Tertnination Date in
effect on the aforementioned 30`h of December.
10. As used in this Agreement, the term "Effective Date" shall mean the date on
which all of the conditions precedent set forth in Section 5 below have been satisfied or i
have occurred. At such time as all of said conditions precedent have been satisfied or
have occurred, the Parties shall execute a supplement to this Agreement specifying a
revised Effedive Date.
SECTION 4 - FIRST OPTION TO PURCHASE PROJECT WATER
11. In consideration for entering into this Water Supply Agreement with the
District, Customer shall have an option to purchase additional Project Water, if such
water is available. This option shall not become effective (effective date) until after the
, District has completed new rate studies, water demand studies, and has completed
accepting and processing applications from other Customers to purchase Project Water
from the District. At such time as the District completes the appiication and approval
process for other Customers to purchase Project Water from the District, Customer
, shall have the right to have its additional Application for Purchase and Delivery of
Project Water considered upon providing written notice of such desire to the DisVict.
District solely shall have the right to determine the effective date of the option and shall
notify Customer as to the date of compietion of the aforementioned process. Said
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option shail entitle the Customer to have its additional Application for Purchase and
Delivery of Project Water considered by the District prior to the consideration by District
of any other Applications for Water Purchase submitted by parties who have not
entered into a Water Supply Agreement by the completion of the aforementioned
process and the effective date.
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SECTION 5 -CONDITIONS PRECEDENT TO DISTRICT S OBLIGATIONS
12. The obligations of District to deliver Project Water and the resulting obligations '
of Customer to accept and consume deliveries of Project Water are conditioned upon
the satisfaction or occurrence of the following conditions precedent: (a) The installation
of appropriately sized water meters by Customer at Customers expense at Customer's
Service Connection; (b) The approval and consent of the SWRCB, if applicable, for the
water to be delivered and sold to Customer hereunder, (c) full and complete
, compliance by Customer, if necessary, with the requirements of the Califomia
Environmental Quality Act ("CEQA�, inGuding the completion of an initial study, and if it
is determined that the project is not exempt from CEQA, either (a) there shall have
been adopted a negative declaration or a mitigated negative declaration, or (b) a final
environmental impact report, all costs of CEQA compliance shall be bome by ,
Customer, shall have been completed and approved, and the time shali have expired
within which a judicial proceeding may be instituted challenging the validity or i
completeness of any such detertnination of exemption, or adoption of a negative
declaration or of a mitigated negative declaration, or approval of a final environmental �,
impact report. The Parties acknowledge and agree that they are proceeding with this �I
Agreement on the basis that the transaction contemplated hereby is exempt from the �
requirements of CEQA due to Customer's historic use. I
13. The Parties may agree to extend the date by which any of these conditions
precedent may be satisfied or waived.
14. If the conditions precedent specified herein are not timely satisfied or waived,
then this Agreement will be void and ail rights granted by this Agreement will be i
terminated and forfeited. I
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SECTION 6 - PERMITS AND AUTHORIZATIONS �I
15. Customer agrees to support District in obtaining any Pertnits, Authorization,
Environmental Approvals, or Approvals necessary to make this Agreement effective; I
and to fully cooperate with District in implementing all of the tertns of this Agreement I
and achieving its objectives.
'I6. This Agreement may be terminated and abandoned at any time by written notice I
from either party if the SWRCB or any other govemmental entity with jurisdiction over
the subject matter of this Agreement rejects or fails to approve the transactions
contemplated by this Agreement, or reduces or modifies District's water rights supply,
or conditions its approval to such transaction on factors beyond the Parlies' individual
or collective practical and/or economic ability to accommodate; or the transactions
contemplated by this Agreement are enjoined or othervvise prohibited by a court of
competent jurisdiction; or the Parties mutually agree the completion of the transactions
contemplated by this Agreement are not feasible. Upon such termination and I
abandonment, this Agreement shall become null and void and each party shall be I,
responsible for its own expenditures and out-of-pocket costs incurred in connection with �
this Agreement subject to the provisions of this Agreement with respect to i
Indemnification set forth below. I
17. The delivery of Project Water pursuant to this Agreement shall not confer any �,
appropriative, public trust, or any other right to water of any nature on any person or
entity. Nothing in this Agreement shall act as a forfeiture, diminution or impairment of
any rights or discretion that District may enjoy to the full use of the water to which it is
entitled pursuant to State Water Resources Control Board Decision D-1030 and Permit �
No. 129476, or from future sources, or shall in any way prejudice any of District's '
rights, title or interest thereto. The Parties hereto agree that Project Water deliveries
under this Agreement and this Agreement itself is evidence of the beneficial use of the
Project Water agreed to be delivered and consumed hereundec The only rights
granted to Customer as a result of this Agreement are those for use of the Project ',
Water delivered pursuant to this Agreement as expressly set forth in this Agreement. �
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SECTION 7 - REPRESENTATIONS AND WARRANTIES OF DISTRICT
District makes the following representations, warranties and covenants to Customer, as
of the date this Agreement is fully executed: �
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18. District is an improvement distrid formed within the Mendocino County Water
Agency organized and operating pursuant to the provisions of Chapter 54 of the Water �,
Agency Acts; !
19. District has the right, power and authority to enter into this Agreement and to
perForm its obligations herein, and the persons executing this Agreement on behalf of
District have the right, power and authority to do so;
20. This Agreement constitutes a legal, valid and binding obligation of District
enforceable against District in accordance with its tertns;
21. The execution and performance of this Agreement by District does not breach
or constitute a default by District under any law, regulation, ruling, court order,
agreement, indenture, or undertaking or other instrument to which District is a party or
by which District or any of its property may be bound or affected.
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SECTION 8 - REPRESENTATIONS AND WARRANTIES OF CUSTOMER
Customer makes the following representation, warcanties and covenants to District, as
of the date this Agreement is fully executed:
22. Customer, by signing this Agreement, is not waiving, releasing, altering, or
transferring any other water right or facilities held by Customer, or right to use water,
vested or othervvise, that Customer may have or acquire, or which may be granted to 'I
Customer by the State Water Resources Control Board. Customer does acknowledge
and agree that the District may seek to secure permits for, acquire, develop, consVvct, �
and operate additional water facilities and systems in the future that will benefit
Customer and Customer's businesses and properties. This Agreement shall not
diminish, impair, supercede or otherwise affect any of the Customers water rights, and
Customers signature on this Agreement does not constitute a waiver, release,
alteration or transfer of any such rights, vested or otherwise, which Customer may
have, acquire, or which may be granted to Customer by the State Water Resources
ConVol Board.
23. Customer acknowledges that, as a condition and partial consideration of this I
Agreement, Customer shall not deliver, use, allow to be used, store, or resell DistncYs �
water granted to or used by Customer to any areas, lands or users outside of the
DistricYs boundaries and/or the designated place of use for the DistricYs water rights as
detertnined by the Califomia State Water Resources Control Board. Further, Customer
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acknowledges that it shall not sell water from its contract allocation to any entity for use
outside the DistricYs designated place of use andlor the DistricPs boundaries, and also i
acknowledges and agrees that the "per acre foot purchase price to be charged"
includes water charges, capacity charges, water connection fees, and services
charges.
24. Customer is a public water agency duly organized, valid and existing, and in good
standing under the laws of the State of Califomia, and is qualified to do and is doing
business in the State of Califomia and/or Customer is actively involved in agriculture
and/or is a private property owner of agricultural lands located within the DistricYs
boundaries and place of use for its water supplies and resources;
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25. Customer has the right, power, intent, and authority under this Agreement to
perform all of its obligations hereunder, and the persons executing this Agreement on
behalf of Customer have the right, power, intent, and authority to do so;
26. This Agreement, and all of its provisions, terms, and obligations herein,
constitutes a legal, valid and binding obligation of Customer, enforceable against
Customer in accordance with its terms;
27. The execution, delivery and performance of this Agreement by Customer will not
breach or constitute a default under or grounds for the acceleration of maturity of any
agreement, indenture, or undertaking or other instrument to which Customer is a party
or by which Customer of any of its property may be bound or affected.
SECTION 9 - REDUCTIONS IN SUPPLY OF WATER AS A RESULT
OF SHORTAGE CONDITIONS
28. In the event that a drought, reduction of supply, or shortage condition is
declared by the District with respect to its water rights or supply in Lake Mendocino and
the east fork of the Russian River, and evidence of such drought, reduction of supply,
or shortage condition is of su�cient magnitude, in the DisVid's sole opinion or findings,
to require a reduction in diversions by District pursuant to its Permit, then District shall
be entitled to reduce the amount of Project Water it is required to deliver to Customer
pursuant to the terms of this Agreement in the manner set forth below without any form
or manner of liability. District and Customer will share prorate in the reduction in
DistricPs allowed diversions from the Russian River and/or Lake Mendocino, as the
Waler Purchase Agreemerrt �
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case may be. District's delivery to Customer will be reduced by CustomePs prorata
share of the reduction in allowed diversions, calculated as: DistricYs delivery obligation
to Customer in a normal flow year divided by DistricYs right to 8,000 acre feet per year
multiplied by the amount of reduction in Project Water available to DisVid under its
Permit. '
29. In the event of such shortage, District shall deliver a written "Notice of '
Impending Shortage" to Customer. Within thirty (30) days of delivery of such a Notice
of Impending Shortage, the Parties shall conduct a meet and confer session for the
purpose of negotiating a mutually acceptable "Supplemental Agreemenf' for the
delivery by District of Project Water to Customer. This Supplemental Agreement shall
contain the terms and provisions under which District will deliver Project Water to
Customer for the period during which the shortage condition prevails.
30. Other events which will trigger a prorata reduction in any amount of Project ;
Water thaY the District is required to deliver to Customer pursuant to this Agreement are
as follows: (a) An adverse regulatory, legal or environmental determination to District, if
not pu��suetl or supported by the Customer, restricting District from diverting and using
the entire 5,000 acre feet per year pursuant to its Permit based on public trust issues,
environmental or endangered species protection issues or on theories of equitable
apportionment, forfeitu�e, abandonment or other theory related to DistricYs use; (b) the
consent of Dis:rict to restriction an its right to divert and use the entire 8,000 acre feet
per year pursuant to its Permit; (c) the consent of District to, or an adverse
determination against District, if not pursued or suppoRed by Customer, finding that
Distnct is no longer reasonably and beneficially using all of its water; or (d) the risk of ,
an urtexpected event disrupting DistricYs atrility to transfer the water to ba delivered to
Customer, or an unexpected event disrupting Customer's ability to receive the water
delivered by District, such as a flood, earthquake, fire, act of war or like emergency.
SECTION 10 - CONSERVATION PLAN
31. Customer, and each and any third parties to whom Customer may sell, give, or
shall allow to be transferred DistricPs water acquired pursuant to the provisions of this
Agreement, shall comply with the requirements of a comprehensive water conservation
program and enforcement plan adopted by Customer and approved by District as
partiai consideration for this Agreement. Customer shall, within 90 days of the I
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execution of this agreement, prepare, adopt, and present to the F�cecutive Director of
the District, a complete water conservation program and enforcement plan. Such
programs and plans shall mandate and utilize Califomia development, domestic,
agricultural, and irrigation water conservation guidelines, including Califomia Urban
Water Association (CUWA) water conservation standards and agricultural irrigation I
conservation techniques as recognized by the Califomia Department of Food and
Agriculture as appropriate. Within 120 days of the execution of this agreement, the
Executive Director shall approve the submitted plan, propose changes to the plan to
Customer, or, in the case of the failure of Customer to submit the required plan, notify
Customer of the termination of this Agreement due to the failure of consideration and II
breach of the terms of this Agreement. Upon approval by the Executive Director, I
Customer shall fully implement and enforce, in favor of the District, the plan and its
provisions during the balance of the term of this Agreement. Failure of Customer to fully
implement and enforce the conservation plan and its provisions within its service area i,
and against third parties (to whom it may sell, give, or allow the transference of �
DistricYs water), for the benefit of District, sha�l constitute a breach of this agreement. i
SECTION 11 - DEFAULT �I
32. Each of the following constitutes an "Event of DefaulY' by Customer under this II
Agreement: '
(a) Payment. If Customer fails to pay the "per acre foot purchase price to �
be charged" when due and payable pursuant to the provisions of Section 2, or ,
any other amount due and payable pursuant to this Agreement by the due date, �
said failure to pay shall constitute a default in this Agreement and any such I
delinquent payment will bear interest at the rate of ten percent (10%) per annum I
until paid in full. I
(b) Promises. Customer faiis to perfortn, compiy with, or observe any term, I
covenant, obligation, or undertaking in this Agreement that it is to perform or I
observe, and such default continues for ten (10) days after written notice of
default has been sent by District to Customec This provision shall include, but ,I
not be limited to, Customer's excessive use of water which exceeds that water �
and water allocation that the Parties have agreed to pursuant to the terms of I�
this Agreement. Any use of DistricYs water by Customer which exceeds the I
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Final—&17/04 14 " ,
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amount of water herein referred to and which is the subject of this Agreement, I
and which is not authorized in writing by the District, shall constitute a breach I
and a default of this Agreement.
(c) Warranties and Represerrtations. Any warranty, representation, or
other statement made by or on behalf of Customer and contained in this
Agreement or any other document fumished in compliance with or in reference
to this Agreement is, on the date made or later proves to be false, misleading, '
or untrue in any material respect. I
SECTION 12 - REMEDIES
33. In the event of any such default by Customer, District shall have the following
rights and remedies, in addition to any rights and remedies now or hereafter provided
by law. All such remedies are cumulative and may be exercised concurrently or i
separately:
(a) Upon default by Customer, District, at DistricPs sole detertnination, may
terminate this Agreement and discontinue fumishing water to Customer
pursuant to the tertns of this Agreement.
(b) In the event of default by Customer, District shall have the option to !
suspend delivery of water to Customer's Service Connection until such time as 'I
the default is remedied by Customer.
(c) In the event of default by Customer, District may, by mandamus or other II
action or proceeding or suit at law or in equity, enforce its rights against
Customer, or by suit in equity enjoin any acts or things which are unlawful or
violate the rights of District.
34. A waiver of any default or breach of duty or contract by District shall not affect
any subsequent default or breach of duty or contract or impair any rights or remedies
on any such subsequent default or breach of duty or contract by Customer. No delay
or omission by District to exercise any right or remedy accruing upon any default or
breach of duty or contract shall impair any such right or remedy or shall be construed to I
be a waiver of any such default or breach of duty or contract or an acquiescence
therein. I
35. No remedy herein conferred upon or reserved to District is intended to be I
exclusive of any other remedy, and each such remedy shall be cumulative and shall be
Water Purchase AgreemeM i
Final—sA7/04 ' 15 �
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in addition to every other remedy given hereunder or now or hereafter existing in aw
in equity or by statute or otherwise and may be exercised without regard to any other
remedy conferred by any other law. I
SECTION 13 — INDEMNIFICATION
36. Customer shall fully defend, indemnify, and hold hartnless the District, its
officers, directors, employees and agents, and each and every one of them, from and
against any and all actions, liability, damages, claims, suits, proceedings, judgments,
settlements, losses and expenses (including reasonable legal fees and expenses of
attorneys chosen to represent District), including all expenses of every type and
description to which it or they may be subjected or put to arising out of or related to: (1) ,
Any breach or alleged breach of any express representation, warranty, covenant, I
provision, promise or agreement of Customer contained in this Agreement or in any
document, instrument or agreement executed and delivered by Customer in connection
herewith; (2) any loss, injury, adverse impact, or damage or alleged loss, injury,
adverse impact, or damage to any person, entity, party, or property arising out of or
related in any way to this Agreement or to the Project Water delivered by District to
Customer pursuant to this Agreement after delivery thereof to Customer's Service
Connection, it being understood that District shall not be liable to Customer for any loss �
or damage to person or property caused by flood, eaRhquake, theft, fire, act of God, I
acts of a public enemy, riot, strike, insurrection, war, court order, requisition or order of '
govemmental body or authority, or any other causes, or any consequential damages or
inconvenience which may arise from or relate to use of the Project Water after delivery I
by District to Customer's Service Connection. This indemnification is effective and shall
apply whether or not any such action is alleged to have been caused in part by District
as a party indemnified hereunder. This indemnification shall not include any claim
arising from the sole active negligence or willful misconduct of District or any of its
directors, officers, employees or agents. �
37. District shall defend, indemnify and hold hartnless Customer, its o�cers,
directors, employees and agents, and each and every one of them, from and against
any and all actions, liability, damages, claims, suits, proceedings, judgments,
settlements, losses and expenses (including reasonable legal fees and expenses of
attomeys chosen to represent Customer including expenses of every type and �
Water Purchase AgrcemeM
Final-9/17/04 ' 16
description to which it may be subjected or put to arising out of or related to: (1) Any
willful breach or alleged breach of any express representation, warranty, covenant, �i
promise or agreement of District contained in this Agreement or in any document,
instrument or agreement executed and delivered by District in connection herewith.
38. Customer acknowledges and agrees that, as a condition and consideration of
this Agreement, Customer, its officers, directors, employees, agents, or consultants,
and each and every one of them, shall take no action of any kind, nor assist any other
individual, party, or entiry in any action or in any way to limit, diminish, impair, interrupt,
or prohibit, either temporarily or permanently, the DistricYs water rights, entitlements, or
ability to perform its obligations under this or any other Agreement that the District may
enter into to provide or deliver water to landowners within its boundaries. Further,
Customer shall maintain in favor of District, during the entire term of this Agreement, a
policy of general liability insurance in an amount of $1,000,000 naming District as an
additional insured for the purposes enumerated in Paragraphs 35, 36, and 37 herein.
Evidence of said policy shall be provided to the Executive Director of District Failure to
comply with this provision shall constitute an immediate default of this Agreement,
notwithstanding the provisions of Section 10 hereto.
SECTION 14 - DEFENSE OF CLAIMS I
39. No right to indemnification under the preceding paragraph shall be available �
unless the Party seeking indemnification (the "Indemnified Party") shall have given to
the Party obligated to provide indemnification (the "Indemnitor') a notice (a "Claim �
Notice") describing in reasonable detail the facts giving rise to any claim for
indemnification hereunder promptly after receipt of knowledge of the facts upon which
such claim is based. Any delay or failure to so notify the Indemnitor shall relieve the
Indemnitor of its obligations hereunder only to the extent, if at all, that it is prejudiced by �
reason of such delay or failure. Upon receipt by the Indemnitor of a Claim Notice from �i
an Indemnified Party with respect to a claim of a third party, such Indemnitor shall I
assume the defense thereof with counsel reasonably satisfactory to the Indemnified
Party, and the Indemnified Party shall cooperate in the defense or prosecution thereof
and shall fumish such records, information, and testimony and attend all such
conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested by the Indemnitor in connection therewith. If the Indemnitor
Water Purchase Agreemer�t
Final-9/17/04 ' 17
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assumes such defense as provided above, the: (a) the indemnitor shall have the right i
in its sole discretion, to settle any ctaim for which indemnification has been sought and ,
is available hereunder, provided the Indemnified Party is fully released from all known I
and unknown claims of such third party and the Indemnified Party is not obligated to
perform any actions or pay any money on account of such settlement. If the Indemnitor
� does not assume such defense as provided above: (a) The Indemnified Party shall
have the right to employ its own counsel in any such case, and all of the fees and ,
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expenses of such counsel shall be the responsibility of Indemnitor which hereby agrees I
to promptly reimburse the Indemnified Parry fully for such expenses; and (b) the
Indemnified Party shall have the right, in its sole discretion, to settle any claim for which
indemnification has been sought and is available hereunder, at the expense of
Indemnitor, who hereby agrees to promptly reimburse the Indemn�ed Party all costs
iand expenses incurred by the Indemnified Party with respect to such settlement.
SECTION 15 - GENERAL PROVISIONS
40. No Third Party Rights. This Agreement is made solely for the benefit of the ',
Parties and their respective permitted successors and assigns, if any. Except for such
a permitted successor and assign, no other person or entity shall have or acquire any
right by virtue of this Agreement.
41. Assignment. Neither Party may assign any of its rights or delegate any of its
duties under this Agreement. Any assignment or delegation made in violation of this
Agreement is void and of no force or effect. This Agreement is and will be binding '
upon and will inure to the benefit of the Parties and, upon dissolution, the legai
successors and assigns of their assets and liabilities. In the event that Customer
proposes to sell its real property to which water from this Agreement is delivered, ;
notwithstanding any other provision herein, Customer shall notify the District of the
proposed sale concurrent with the close of escrow. If Distrid is timely notified, and if no
violations of this Agreement exist at the time of said notification, District shall agree to '
the assignment of the subjed water supply to the proposed new owner on the condition
that the proposed new owner executes this water supply agreement prior to the close
of the escrow on the subject property. The execution of this Agreement by the new ,
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Final—9/77/tl4 18
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, owner shall be the consideration for the District's agreement to the assignment of this
Agreement by Customer."
42. Goveming Law. This Agreement shall be govemed by, and construed and i
interpreted in accordance with the laws of the State of Califomia.
43. Amendment. The terms of this Agreement may be modified only in writing by '
mutual agreement on signature of Customer and District. Said amendment shall be
attached to this Agreement. Any amendment made in violation of this section shall be
���
null and void.
' 44. Extension of Term. The duration of the Term of this Agreement may be �
extended only by mutual agreement of the Customer and District in writing signed by
authorized representatives of both Customer and District. Such a written extension
, shall be attached to this Agreement.
45. Entire Agreement. This Agreement, together with all contract documents and
ordinances of District expressly incorporated herein by reference, supersedes any and
all other agreements, either oral or in writing, between the Parties hereto with respect to
the delivery of Projed Water Yo Customer by District and contains all the covenants and
Iagreements between the Parties with respect thereto. Each Party to this Agreement '
acknowledges that no representations or promises have been made by any party
hereto which are not embodied herein, and that no other agreement or promise not
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contained in this Agreement or in the other contract documents and ordinances of
District shall be valid or binding.
46. Severability. If any provision in this Agreement is held by a court of competent
jurisdiction or an arbitrator or arbitration panel to be invalid, void or unenforceable, the
� remaining provision shall nevertheless continue in full force and effect without being
impaired or invalidated in any way notwithstanding such invalidity, iilegality or
unenforceabiiity.
47. Time is of the Essence. If is expressly hereby agreed that time is of the
essence of each and every provision of this Agreement, including all contract
documents and ordinances incorporated herein. '
48. Attomeys Fees. Should either Party to this Agreement reasonably retain
counsel for the purpose of enforcing any provision of this Agreement, including without
limitation the institution of any action or proceeding to enforce any provision of this
Agreement, or to recover damages if otherwise available hereunder, or to obtain
Water Purchase AgreemeM
Final—9/17164 19
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injunctive or other refief by reason of any alleged breach of any provision of this
Agreement, or for a declaration based on a demonstrated necessity of such Parly's
rights or oblrgations under this Agreement, or tor any otherjudicial or equitable remedy,
then if the matter is resolved by judicial or quasi judicial defermination (inGuding
arbitration, if such arbitration is agreed to by the Parties), the prevailing Party shall be
entitled, in addition to such other relief as may be granted, to be reimbursed by the
losing Party for all attomeys fees, expert fees and costs, and all litigation or arbitration
fees and costs reasonably incurred, inciuding without limitation all attomeys fees and
costs for services rendered to the prevailing Party and all attomeys fees and costs
reasonably incurred in enforcing any judgment or order entered on appeal, The
prevailing Party shall be determined by the court (or arbitrator, if arbitration is agreed to
by the Parties) in the initial or any subsequent proceeding.
49. Notices. Any notice, approval, consent, waiver or other communication
required or pertnitted to be given or to be served upon either Party in connection with
this Agreement shall be in writing. Such notice shall be personally served, sent by
facsimile, telegram, or cable, or sent prepaid by registered or ceRified mail with retum
receipt requested, or sent by reputable overnight delivery service, such as Federal
Express, and shall be deemed given: (a) If personally served, when delivered to the
Party to whom such notice is addressed; (b) if given by facsimile, telegram, or cable,
when sent; (c) if given by prepaid or certified mail with retum receipt requested, on the
date of execution of the retum receipt; or (d) if sent by reputable ovemight delivery
service, such as Federal Express, when received with confirmation of delivery. Such
notices shall be addressed to the Party to whom such notice is to be given at the
Party's address set forth below or as such Party shall otherwise direct in writing to the
other Party deiivered or sent in accordance with this section.
It to District: Mendocino County Russian River Flood Control and
Water Conseroation Improvement District
151 Laws Avenue, Suite D '
Ukiah, Califomia 95482
Phone: (707) 462-5278
Fax: (707) 462-5279
If to Customer:
Water Purchase AgreemeM
� Final-9/17/04 20
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50. Execution and Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
' IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
last date below written. I
Date: U:�--7c z�c / MENDOCINO COUNTY RUSSIAN RIVER I
FLOOD CONTROL AND WATER
CONSERVATION IMPROVEMENT I
DISTRICT
By: �,o C�� k� �,
Title: I/� i u�.=4'„�
Date: / r" Z- -t� `� CITY OF UKIAH
I
BY;y�% . L— ��
Candace Horsley I
Titl2: ri ty ManaaPr I
i
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II
� Water Purchase Agreement
Final—9/17I04 21