Loading...
Settlement Agreement Regarding Water Usage Restrictions on Real Property 1999-0741650 DOC r 1999-0741650 1092 NOV 08. 1999 8:08 lJFIClflIllDlOO SilN DIEOO IDIllY REaIlIIR'S IJFICE lJEIDlY J. !llITH, IDIllY IflDlIR FEES: 0.00 AM Recording Requested By, and When Recorded Mail to: City Clerk City of Po way P.O. Box 789 Poway, CA 92064 \~ No document fee due 1Q !=Or -H.e. ew".ef,-" ol>-H-u.. C i't', C\~<I SETTLEMENT AGREEMENT REGARDING WATER USAGE \yg~ RESTRICTIONS ON REAL PROPERTY \/ This Settlement Agreement Regarding Water Usage Restrictions on Real Property ("Agreement"), is made and entered into effective as of November ~ , 1999, between Maderas Country Club, LLC, a California limited liability company ("Maderas"), and the City of Poway, a municipal corporation ("City"), which agree as follows: I. Recitals. This Agreement is made with reference to the following recitals of facts, which recitals constitute an integral part of this Agreement: 1.1. Maderas is the owner of that certain real property in the City of Poway, California, described on attached Exhibit "N' (the "Golf Course Property"), upon which Maderas is in the process of developing a golf course and country club (the "Golf Course"). 1.2. The City imposed certain conditions of approval, and the City and Maderas' predecessor-in-interest, Environmental Development Ltd., a California limited partnership, reached certain agreements regarding the use of reclaimed water, raw water and groundwater in the development and operation of the Golf Course, including those conditions and agreements set forth in City Resolution Nos. 90-095, P-90-34, P-90-91, and the other City Resolutions affecting the rights of Maderas to develop the Golf Course Property (collectively, such Resolutions are referred to herein as the "Resolutions"), and an agreement entitled "Agreement Respecting Irrigation Water" dated January 1, 1997 ("Irrigation Agreement"). The City contends that the Resolutions and the Irrigation Agreement (a) prohibit Maderas from commencing its commercial operation of the Golf Course using groundwater prior to completion and review of a hydrology study, (b) require City approval of any groundwater use after the hydrology study, ( c) require use of raw water if reclaimed water is not available, and (d) require the use of reclaimed water once it becomes available (the "Contentions"). Maderas disputes said Contentions (the "Disputes"). 1.3. Maderas and the City enter into this Settlement Agreement to resolve the Contentions and Disputes without litigation in order to allow the commercial use of the Golf Course to commence, to comply with CEQA, and to clarifY the discretion of the City Council 1 SD_DOCSI188078.5 [W97] 1093 with regard to groundwater use by Maderas and the obligation of Maderas to use reclaimed water once it becomes available. 2. Use of Reclaimed Water. Maderas hereby agrees that at such time as reclaimed water is made available at a price that does not exceed the then applicable price of potable water, Maderas will use reclaimed water exclusively to irrigate the Golf Course unless and only to the extent that the City Council in its sole discretion expressly allows the use of raw water or groundwater for such irrigation. At its sole cost and expense, Maderas will (a) connect its irrigation system to the reclaimed water distribution system within ninety (90) days of written notice from the City that reclaimed water is available at the terminus of the existing reclaimed water line installed to serve the Golf Course Property as of the date of this Agreement or at Maderas' raw water line which connects to the San Diego County Water Authority's raw water line and (b) immediately thereafter commence the use of reclaimed water. 3. Use of Raw Water. Until such time as reclaimed water becomes available consistent with section 2 above, Maderas hereby agrees that it will install, at Maderas' sole cost and expense, such needed pipes, valves, and other related improvements which are necessary to hook up the Golf Course to the San Diego County Water Authority's raw water line located near the boundary of the Golf Course Property. Maderas shall not be responsible for any improvements to the San Diego County Water Authority's raw water line or facilities, even if such line or facilities may be necessary in order for there to be sufficient capacity of raw water to irrigate the Golf Course. If Maderas is unable, after making a reasonable effort, to acquire privately the necessary off site easements to hook up to raw water, the City hereby agrees to acquire the necessary easements by eminent domain, subject to reimbursement by Maderas for the costs, fees , and expenses of such eminent domain proceeding. Maderas shall complete the connection of the Golf Course irrigation system to the raw water line within 120 days of the recording of all necessary easements or court orders perfecting the rights to install the connection to the raw water line. Maderas hereby agrees to use raw water or potable water for the irrigation of the Golf Course until reclaimed water becomes available, except to the extent the City authorizes use of groundwater pursuant to section 4 below. Maderas also hereby agrees that it shall cease using raw water for irrigation of the Golf Course at such time as sufficient reclaimed water becomes available to the Golf Course consistent with section 2 above, except as otherwise expressly authorized by the City Council. 4. Use of Groundwater. 4.1 Maderas hereby agrees that it shall not use groundwater to irrigate the Golf Course except as expressly authorized by the City Council. Current authorization for such use expires March 15, 2000. If further authorization is not granted by the City Council, on or before March 15, 2000, on March 16, 2000 and thereafter, Maderas will cease using groundwater and will use only raw water, reclaimed water, or potable water to irrigate the Golf Course until further authorization to use groundwater is granted by the City Council. 4.2 Maderas has engaged a hydrologist to undertake the preparation of the hydrology study relative to the use of groundwater to irrigate the Golf Course. The hydrology 2 SD _DOCSI188078.S [W97] 1094 study specifically shall analyze the potential impact of Maderas' use of groundwater on the riparian corridor along Sycamore Creek and residential areas surrounding the Golf Course affected (or potentially affected) by Maderas' use of groundwater. Maderas hereby agrees to continue the processing and completion of the hydrology study to the satisfaction of the City. City hereby agrees to review and comment promptly on any drafts of the hydrology study delivered to it by Maderas. Maderas shall submit a copy of the hydrology study to the City not later than February IS, 2000. Maderas shall reimburse the City for the cost of its reasonable review of the study within 30 days of receipt ofa statement for such cost. 4.3 The City shall review the hydrology study and receive public testimony on the proposed use of groundwater by Maderas. The City Council shall determine the amount, if any, of groundwater that Maderas may use for irrigation of the Golf Course. The determination of the City Council shall be supported by substantial evidence. In no event will groundwater use be authorized if it materially or adversely impacts residential users of groundwater or the riparian area or oak trees in the vicinity of the Golf Course Property. If conditions change after the City's initial determination of how much groundwater, if any, Maderas is allowed to use, Maderas may request that the City make adjustments to Maderas' allowed use of groundwater. The City Council on its own motion may, at any time after twenty (20) days notice to Maderas, modifY the amount of groundwater which Maderas may use. Such decision shall be based upon substantial evidence. Neither the original Conditional Use Permit nor any Amended Conditional Use Permit shall create any vested right to the use of any groundwater to irrigate the Golf Course. The decisions of the City Council shall be final and if supported by substantial evidence, shall not be disturbed or modified by any court at the request of Mader as. 4.4 Maderas shall process an amended Conditional Use Permit and comply with CEQA for all uses and structures on the Golf Course Property as may be reasonably required by the City staff. The application therefor shall be complete by November 5, 1999 (except for the hydrology study) and Maderas shall cooperate with the City in the processing thereof in order that a public hearing may be conducted thereon prior to March 15, 2000 or as soon thereafter as legally possible. Until March 15, 2000, Maderas may, once it obtains required temporary use permits and secures to the satisfaction of the Director of Development Services the full performance of all unperformed conditions of its Conditional Use Permit, commence commercial operation of the Golf Course if it uses at least one-half potable water to irrigate the Golf Course, and may use an amount of groundwater equal to but not greater than the potable water used to irrigate the Golf Course, provided that no such use of groundwater shall be made to the extent that it adversely impacts residential users of groundwater or the riparian area or oak trees in the vicinity of the Golf Course Property. Maderas shall cease operation of the Golf Course if it fails to use at least one-half potable water to irrigate the Golf Course. Maderas may request, and the City may approve such request without having to amend this Agreement, that the City allow a higher percentage of groundwater to be used to irrigate the Golf Course Property prior to Marc~ooo, although the City shall be under no obligation to approve any such increase. 4.5 On or before November 20, 1999, Maderas shall install flow meters on each of the groundwater wells located on the Golf Course Property. Until such time as flow meters are installed, no grounwater may be used to irrigate the Golf Course after opening the Golf 3 SD_DOCS\188078.S [W97] 1095 Course for commercial use. Maderas shall maintain records to the satisfaction of the City of the quantity of groundwater pumped each day by each well, shall submit a written record thereof to the City Department of Development Services for each calendar month by the tenth (10th) day of the following month, through and including November, 2000, and shall certifY each such record under penalty of peIjury as true and correct. After November, 2000, such records shall at all times be maintained by Maderas and shall be submitted with ten (10) days of written request of the Director of Development Services until and unless expressly relieved of said reporting obligations by the City Council. The City shall be provided access to the flow meters by Maderas during regular business hours and shall be provided copies of Mader as' electricity bills within ten (10) days of a written request by the City. 4.6 Maderas shall deposit with the City the sum of $25,000 to be used at the sole and absolute discretion of the City to defray the costs of deepening existing wells or drilling new wells to replace existing wells of nearby property owners which the City determines were caused by the use of groundwater by Maderas. Prior to the City's expenditure of any such funds, the City shall provide at least seventy-two (72) hour notice to Maderas and an opportunity to be heard. Within ten (10) days of written demand from time to time from the City, Maderas shall deposit such additional sums required to restore the deposit to a balance of $25,000. 5. Miscellaneous Provisions. 5.1 Each party by execution of this Agreement acknowledges that such party has been advised, and been given the opportunity to seek independent counsel prior to entering into this Agreement. Furthermore, the rule of construction that ambiguities are to be resolved against the drafting party or in favor of the party receiving a particular benefit under an agreement may not be employed in the interpretation of this Agreement or any amendment to this Agreement. 5.2 This Agreement is governed by and will be construed in accordance with the laws of the State of California, irrespective of California's choice-of-Iaw principles. 5.3 Each party to this Agreement shall execute and deliver all instruments and documents and take all actions as may be reasonably required or appropriate to carry out the purposes of this Agreement. 5.4 All litigation, actions, and proceedings ansmg in connection with this Agreement must be conducted exclusively in the County of San Diego, State of California. Each party authorizes and accepts service of process sufficient for personal jurisdiction in any such litigation, action, or proceeding against it as contemplated by this Agreement by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices set forth in this Agreement. 5.5 This Agreement may be executed in counterparts, each of which is deemed an original and all of which together constitute one document. All exhibits attached to and referenced in this Agreement are incorporated into this Agreement. 4 SD_DOCSlI88078.S [W97] 1096 5.6 The prevailing party(ies) in any litigation, arbitration, mediation, bankruptcy, insolvency or other proceeding ("proceeding") relating to the enforcement or interpretation of this Agreement may recover from the unsuccessful party(ies) all costs, expenses, and actual attorneys' fees (including expert witness and other consultants' fees and costs) relating to or arising out of (a) the Proceeding (whether or not the Proceeding proceeds to judgment), and (b) any post-judgment or post-award proceeding including one to enforce or collect any judgment or award resulting from the Proceeding. All such judgments and awards shall contain a specific provision for the recovery of all such subsequently incurred costs, expenses, and actual attorneys' fees. 5.7 This Agreement: supersedes all negotiations, stipulations, understandings, agreements, representations and warranties, if any, with respect to water use by Maderas on the Golf Course Property to the extent the same are inconsistent herewith, which precede or accompany the execution ofthis Agreement. The parties agree that the amended Conditional Use Permit to be processed by Maderas shall be consistent with the terms hereof. Modifications hereof shall only be effective upon written agreement signed by both parties hereto. 5.8 Whenever the context so requires in this Agreement, all words used in the singular may include the plural (and vice versa) and the word "person" includes a natural person, a corporation, a firm, a partnership, a joint venture, a trust an estate or any other entity. The termS "includes" and "including" do not imply any limitation. No remedy or election under this Agreement is exclusive, but rather, to the extent permitted by applicable law, each such remedy and election is cumulative and all other remedies at law or in equity. The paragraph headings in this Agreement; (a) are included only for convenience, (b) do not in any manner modify or limit any of the provision of this Agreement, and (c) may not be used in the interpretation of this Agreement. Each provision of this Agreement is valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement (or the application of such provision to any person or circumstance) is or becomes invalid or unenforceable, the remainder of this Agreement, and the application of such provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, are not affected by such invalidity or unenforceability. 5.9 Each notice and other communication required or permitted to be given under this Agreement ("Notice") must be in writing. Notice is duly given to another party upon: (a) hand delivery to the City or to the Golf Course Property, (b) receipt by the other party when sent by facsimile to the address and/or facsimile number last provided by the addressee to the noticing party (provided, however, that a Notice will not effective unless a duplicate copy of the facsimile Notice is promptly given by one of the other methods permitted under this paragraph), (c) three business days after the Notice has been deposited with the United States postal service as first class certified mail, return receipt requested, postage prepaid, or (d) the next business day after the Notice has been deposited with a reputable overnight delivery service, postage prepaid, with next-business-day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the deliver_service-provider. Each party shall make a reasonable, good faith effort to ensure that it will accept or receive Notices to it that are given in accordance 5 SD_DOCSlI88078.S {W97J 1097 with this paragraph. A party may change its address for purposes of this paragraph by giving the other party(ies) written notice of a new address in the manner set forth above. 5.10 Any waiver of a default or provision under this Agreement must be in wntmg. No such waiver constitutes a waiver of any other default or provision concerning the same or any other provisions of this Agreement. No delay or omission by a party in the exercise of any of its rights or remedies constitutes a waiver of (or otherwise impairs) such right or remedy. A consent to or approval of any act does not waive or render unnecessary the consent to or approval of any other or subsequent act. 5.11 Maderas agrees that any breach of the Settlement Agreement, specifically including, but not limited to, the use of groundwater in excess of the quantity authorized by the City Council and/or failure to report the pumping thereof as required by Paragraph 4.5, will result in irreparable injury which will entitle the City to obtain injunctive relief, including a temporary restraining order and preliminary and permanent injunctions, to specifically enforce the provisions of this Agreement. Maderas hereby waives the defenses that the City is not likely to prevail on the merits or that the injury is not irreparable if groundwater use exceeds the quantity authorized by the City Councilor the reporting requirements of Paragraph 4.5 are not strictly performed. Nothing in this paragraph shall preclude Maderas from challenging the City's conclusion that groundwater use has exceeded the quantity authorized by the City Councilor that it has failed to comply strictly with the reporting requirements of Paragraph 4.5. 5.12 This Agreement restricts the exercise of groundwater property rights on the Golf Course Property. Maderas agrees that the City, through the Conditional Use Permit process and by this Agreement, has the power to restrict such rights and agrees to be bound by the determinations of the City Council that are made consistent with this Agreement. This Agreement shall run with the land and shall be binding on the successors-in-interest of Maderas. Accordingly, the parties agree to provide notice of the restrictions of this Agreement by recording the same in the office of the Recorder of San Diego County. 5.13 In the event of litigation by a third party against the City of Poway to compel the City to deny or prevent commercial use of the Golf Course prior to completion of the hydrology study, or to enforce the water use restrictions of this Agreement, Maderas shall pay the 6 SD_DOCSlI88078.S IW971 1098 City's defense fees and costs and shall indemnify and hold harmless the City from any and all loss, damage, award, judgment, and expenses resulting therefrom. Executed at Poway, California. By: MADERASCOUNTRYCLUB,LLC By: Sunroad Asset Management, Inc., a Califor~ia corporation Manag CITY OF POW A Y YOR By: Its: S M. ECIGS, CITY ATTORNEY ~o ALLEN D. HAYNIE ATTORNEY FOR MADERAS -.... .-:0 7 SD_DOCSII88078.5 [W97] 1099 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. ) CITY AND COUNTY OF SAN DIEGO On November , 1999 , before me, (flo"," AI,~ TiU. or OfTh-o,) personally appeared o personally known to me -or- o 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 acknowledged 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. WITNESS my hand and official seal. Signature Of Notary CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. ) CITY AND COUNTY OF SAN DIEGO , before me, ~'o-r<:>.c... ~...c::x:~"'..""<-) ~~~-9->\9\~<::- (Pl." '0 AI,~ TiUo or 0111".,) On November , 1999 personally appeared R. ' c '\.---..Q.. ""' ci. ...(0. "'-J a.. '" '" ~ personally known to me -or- o 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 acknowledged 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. SD_DOCSI188078.S IW97J WITNESS my hand and official seal. sa~.~\ ~----~~---- 8 I~~~~~ I 2 ~ ':~~~...~~ I 1100 ( FINAL 884 EXHIBIT "A" TO GRANT DEED LEGAL DESCRIPTION OF LAND 1. Parcel 3 of Parcel Map No. 17989, in the City of Poway, County of San Diego, State of California, flied in the Office of the County Recorder of San Diego County on February 25, 1 998, as File No. 1998-0099090 of Official Records.