INDEMNIFICATION AND WAIVER AGREEMENT

 

BETWEEN

 

_____________________________________________,

 

AND

 

BIG BEAR AREA REGIONAL WASTEWATER AGENCY

 

AND

 

CITY OF BIG BEAR LAKE, DEPARTMENT OF WATER AND POWER

 

            This Indemnification and Waiver Agreement (“Agreement”) is made this _____ day of _____________, 2008, by and between ____________________________ (“Recycled Water User”), the City of Big Bear Lake, Department of Water and Power “DWP”) and the Big Bear Area Regional Wastewater Agency (“BBARWA“).  Recycled Water User, DWP and BBARWA may sometimes be referred individually as “Party” and collectively and the “Parties.”

 

RECITALS

 

            WHEREAS, Potable Water in the Big Bear area is a precious resource; and

 

            WHEREAS, DWP, in an effort to alleviate demand on limited potable supplies, is restricting the use of potable Water for landscape irrigation in the Big Bear area during the summers of 2004 and 2005; and

 

            WHEREAS, Recycled Water from the Big Bear Area Regional Wastewater Agency (“BBARWA”) is available for use in place of fresh Water for certain purposes; and

 

            WHEREAS, BBARWA currently operates under a permit issued by the Santa Ana Regional Water Quality Control Board, which allows for the application of tertiary 2.2 Recycled Water at unrestricted landscape irrigation use sites; and

 

            WHEREAS, BBARWA prepared a report entitled, “Engineering Report for Water Reuse Permits” which proposes to temporarily supply the tertiary 2.2 Recycled Water produced by BBARWA to single-family residential lots in the Big Bear area for outdoor landscape irrigation in an effort to alleviate demand on the limited potable Water supplies; and

 

            WHEREAS, Currently there is no Recycled Water distribution system to the Big Bear area; and

 

            WHEREAS, BBARWA and DWP proposes that the Recycled Water be trucked via Water haulers to the residential use sites, stored on site and applied by the individual property owners; and

 

            WHEREAS, Recycled Water User has agreed to provide certain assurances and indemnities to BBARWA and DWP concerning any and all claims, actions or proceedings arising out of BBARWA’s provision of Recycled Water; and

 

NOW THEREFORE, in consideration of the promises and covenants set forth below, the Parties agree as follows:

 

 

 

AGREEMENT

 

            This Agreement is entered into between the Parties as a condition of BBARWA’s provision of Recycled Water to Recycled Water User.  The Parties hereby acknowledge and recognize the adequacy and sufficiency of the consideration provided.

 

1.                  Use.

1.1.            General.  Recycled Water User covenants and agrees to use the Recycled Water provided under this Agreement (the “Recycled Water”) only as authorized by applicable state and federal laws, including, without limitation, any and all regulations imposed by the California Department of Health Services.  BBARWA and DWP in no way represent that the Recycled Water provided under this Agreement is suitable for Recycled Water User’s purposes.  The use of the Recycled Water is temporary and shall cease once the Water supply emergency is over or continue only with the approval of all interested local, state and federal agencies. 

 

1.2.            Specific.  Recycled Water User agrees to use the Recycled Water only for outdoor landscape irrigation on Recycled Water User’s property and in accordance with all the terms and conditions of this Agreement and all applicable provisions of BBARWA Ordinance No. 03-2002 where applicable, and DWP Ordinance No. 2003-331.  Recycled Water User agrees to use the Recycled Water only in the location(s) described in Attachment B hereto.  Homeowner agrees to obtain BBARWA/DWP written consent prior to using the Recycled Water at a location not described in Attachment B.  Any changes to location of uses of the Recycled Water must be reflected in a substitute Attachment B and attached hereto.

 

1.3.            Prohibited Uses.  Recycled Water User hereby covenants and agrees to the following restrictions:

 

1.3.1.      There shall be no physical cross-connections between the on-site temporary Recycled Water holding tank and any interior or exterior plumbing fixtures (including outdoor irrigation piping).

 

1.3.2.      Recycled Water shall be distributed from the onsite temporary Recycled Water holding tank by buckets or gravity fed hoses.

 

1.3.3.      Pumps and piping for on-site irrigation systems shall be allowed to distribute the Recycled Water only if all requirements of the 2001 Edition of the California Plumbing and Building codes are met, and a permit is obtained through the San Bernardino County Department of Building and Safety.

 

1.3.4.      Recycled Water will not be allowed for the filling of wading or swimming pools.

 

1.3.5.      Recycled Water User shall be responsible for advising all family members, guests, and visitors that the Recycled Water is not for human consumption and should be handled with caution.  Recycled Water User agrees to take steps to minimize the risk of inadvertent human exposure to the Recycled Water.

 

1.3.6.      Recycled Water shall not be used for drinking, food preparation, bathing, domestic purposes or any type of human consumption.

 

1.3.7.      Recycled Water shall not be sold or supplied to any other person for any purposes whatsoever.

 

1.3.8.      In the event Recycled Water User elects to transport the Recycled Water with Recycled Water User’s own vehicle, Recycled Water User shall do so at Recycled Water User’s own risk and BBARWA and/or DWP shall not be responsible for the quality of the Recycled Water.

 

1.3.9.      Failure to comply with these conditions may result in termination of recycled water deliveries to Recycled Water User’s premises.

 

1.4              Other Requirements.  Recycled Water User hereby covenants and agrees to the following requirements:

 

1.4.1        All on-site temporary recycled water holding tanks shall be approved by BBARWA and shall be of a standard design.  All water holding tanks with a capacity of greater than 5,000 gallons, or which have a diameter less than twice the height shall obtain a permit from the San Bernardino County Department of Building and Safety.

 

1.4.2        All on-site temporary recycled water holding tanks equipped with permanent piping and/or pumps must be permitted by the San Bernardino County Department of Building and Safety.

 

1.4.3        All on-site temporary recycled water holding tanks shall be appropriately identified with signage reading “RECYCLED WATER – DO NOT DRINK”.

 

1.4.4        All onsite temporary recycled water holding shall be inaccessible to small children and/or locked at all times.

 

1.4.5        Backflow protection shall be provided as required by Section 7604 of the California Cross-Connection Control Regulations (Title 17).

 

1.4.6        All regulations, monitoring and signage referenced on page 3 of BBARWA’s “Engineering Report for Water Reuse Permits” shall be adhered to.

 

1.5.      Right of Inspection.  Recycled Water User agrees to permit authorized representatives of BBARWA, DWP or any other governmental agency with jurisdiction, to inspect Recycled Water User’s premises for the purpose of verifying compliance with this Agreement and all applicable laws.  Inspections shall occur at reasonable times or during normal business hours.  Recycled Water User acknowledges that by conducting inspections of Recycled Water User’s premises and/or on-site temporary recycled water holding tank(s), including backflow prevention assemblies, BBARWA AND DWP are not relieving Recycled Water User from its obligation to ensure that its use of Recycled Water and/or on-site temporary recycled water holding tank(s) is in compliance with this Agreement or any applicable laws.

 

1.6.1.      Termination.  BBARWA may terminate this Agreement immediately, in its sole discretion, if BBARWA determines that Recycled Water User has failed to use the Recycled Water in accordance with all applicable laws, this Agreement, and/or Attachment B.

 

2.                  Indemnification.

 

2.1.            Recycled Water User understands and agrees that the use of Recycled Water is not intended for human consumptions and while presumably safe, may cause damage to real or personal property, including landscaping, serious injury, partial or total disability, paralysis, or death.

 

 

 

2.2.            Recycled Water User on behalf of itself, its heirs, guests, agents, contractors, subsidiaries, affiliates, shareholders, officers, directors, successors in interest, assignees and beneficiaries, hereby waives releases, indemnifies against, holds harmless, discharges and agrees not to sue BBARWA, DWP, its officers, officials, employees, agents, attorneys, volunteers or operators for any claims, damages, costs, attorney’s fees, or causes of action which they have or may have in the future, or which third parties have or may have in the future, as a result of damages, injuries, including death, sustained or incurred by any party relating to the use of recycled water, from whatever cause, including, but not limited to, the negligence, breach of contract or wrongful conduct of the Parties.

 

2.3.            Recycled Water User shall, at its own expense and with counsel selected by BBARWA/DWP, fully defend, indemnify and hold harmless (the  "Indemnification Obligations") BBARWA, DWP, its officials, officers, employees, and agents, from and against any and all writs, extraordinary relief, claims, suits, causes of action, fines, penalties, charges, proceedings, damages, injuries or losses of any name, kind or description, specifically including attorneys' fees (collectively, "Liabilities"), arising in any way out of BBARWA's provision of Recycled Water to single family residences in the Big Bear area, including, but not limited to any damages (including damage to Recycled Water User's real property, including plants, grass and other vegetation) and future health related claims.

 

2.3.1.      Recycled Water User's duty to fulfill its Indemnification Obligations and to satisfy the Liabilities specifically extends to, but is not limited to, any fees, penalties or charges imposed on BBARWA by either the California Department of Health Services or any other state or federal agency due to any violation of the administrative rules and regulations or laws governing the sale and/or provision of recycled water.

 

2.3.2.      Recycled Water User's duty to fulfill its Indemnification Obligations and to satisfy the Liabilities also specifically extends to, but is not limited to, any claims brought by the future owners of residences or property in the Lake Williams area who may receive the Recycled Water described in this Agreement.

 

 

2.3.3.      Recycled Water User's duty to fulfill its Indemnification Obligations and to satisfy the Liabilities shall also extend, but not be limited to, any and all actions seeking damages for personal or real property damages, whether they are real or imagined and any damages or liabilities that may arise from the transportation of the Recycled Water.

 

2.4.            BBARWA shall promptly notify Recycled Water User of any such claim, action or proceeding, and shall cooperate fully in the defense of such claim, action, or proceeding, or any other actions constituting liabilities. 

 

2.5.            Recycled Water User's obligations under this Section shall not be limited to the amount of insurance coverage that may be available to Recycled Water User, and shall not otherwise be restricted or confined by the presence or absence of any insurance policy held by BBARW A DWP or Recycled Water User.

 

3.                  Waiver.

 

3.1.      By execution of this Agreement, Recycled Water User hereby expressly and unconditional1y waives to the maximum legal extent, any and all rights, causes, costs and expenses relating to the provision of Recycled Water by BBARWA/DWP. Without limiting the generality of the foregoing, such waiver and release includes any payments or other compensation for property damage and health related issues and the like. Recycled Water User hereby waives, to the maximum legal extent, any and all other claims, remedies and causes of action for damages, liabilities, losses or injuries related to the provision of the Recycled Water, whether known or unknown, foreseeable or unforeseeable.

 

3.2.      Recycled Water User acknowledges that it is aware of California Civil Code Section 1542, which provides:

 

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.

              ____  (initials of RECYCLED WATER USER)

 

            This Agreement has been entered into in contemplation of Civil Code Section 1542. Consequently, Recycled Water User hereby waives to the maximum extent the benefits and protections of Civil Code Section 1542 and all other state and federal statutes and decisional authority of similar effect.

 

4.                  Interruption of Service.

 

4.1.      BBARWA/DWP shall not be liable for any interruptions in Recycled Water User's Recycled Water service.

 

4.2.      BBARWA may interrupt Recycled Water service at any time if BBARWA/DWP determines that Recycled Water User is in breach of any provision in this Agreement. The provisions of this Section are not intended to limit the indemnification and waiver obligations of Recycled Water User contained in Sections 2 and 3 of this Agreement.

 

 

5.                  Survival.    Recycled Water User's obligations, as set forth above, shall survive the completion or abandonment of the provision of Recyc1ed Water. Such obligations shall be perpetual in duration and shall continue until such time as BBARWA/DWP is no longer at risk for anyone or more of the Liabilities.

 

6.                  Interpretation.    The provisions of this Agreement are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to BBARW A DWP. Further, all obligations and Liabilities under this Agreement are to be paid by Recycled Water User as they are incurred.

 

7.                  Entire Agreement.    The undersigned all acknowledge and represent that they have read this Agreement and consulted with their respective attorneys concerning its contents and consequences, if they so desire, that the Agreement is being executed solely in reliance on their respective judgment, belief, and knowledge of the matters set forth herein, and that the Agreement contains the entire agreement between the Parties (except for specific related agreements contemplated by this Agreement or mutually executed written amendments to this Agreement).. This Agreement, negotiated by the Parties and their counsel, integrates all the subject terms and conditions and supersedes all negotiations or previous agreements between the Parties concerning the specific subject matter of this Agreement.

 

8.                  Severability.    Should any term of this Agreement be deemed unlawful, that provision shall be severed and the remaining terms shall continue to be valid and fully enforceable.

 

9.                  Authority to Bind.    Each of the undersigned signing on the behalf of a Party warrants that he or she is fully authorized to sign for such Party.

 

10.              Counterparts.    This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.

 

11.              Captions.    The captions of the various articles and paragraphs of this Agreement are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement or any part or parts of this Agreement.

 

12.              Incorporation of Recitals.    The Recitals constitute a material part of this Agreement and are incorporated by this reference as though fully set forth herein.

 

13.              No Third Party Beneficiaries.   The Parties expressly acknowledge that it is not their intent to create or confer any rights or obligations in or upon any third person or entity under this Agreement. The Parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against any of the Parties based upon this Agreement.

 

 

 

 

 

BY SIGNING BELOW, EACH PARTY RECOGNIZES THAT SUCH PARTY HAS CAREFULLY READ, UNDERSTANDS, ACKNOWLEDGES AND AGREES TO THIS AGREEMENT. THE PARTIES UNDERSTAND THAT THEY ARE GIVING UP LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND THAT THIS AGREEMENT REPRESENTS ACONTRACT BETWEEN THE PARTIES HERETO. EACH PARTY HAS AGREED TO SIGN THIS AGREEMENT OF THAT PARTY'S OWN FREE WILL IN WITNESS WHEREOF, THIS AGREEMENT HAS BEEN EXECUTED BY THE PARTIES AS OF THE DATE FIRST WRITTEN ABOVE.

 

 

INDEMNIFICATION AND WAIVER AGREEMENT (cont.)

 

 

RECYCLED WATER USER: (be sure to initial on pg. 6)

 

 

 

_______________________________________________________________________

Print Name                                         Signature                                             Date

 

 

CITY OF BIG BEAR LAKE, DEPARTMENT OF WATER AND POWER:

 

 

 

_______________________________________________________________________

Print Name                                         Signature                                             Date

 

FOR BBARWA USE ONLY:

 

 

 

______________________________________________________________________

Print Name                                         Signature                                                         Date