Declaration of Covenants and Agreement Regarding Undersized Water Service
Upon Recordation, Return to:
City of Napa
P.O. Box 660
Napa, CA 94559
Attn: City Clerk
Exempt from County Recording Fees
Government Code 27383
(For Recorder’s Use Only)
DECLARATION OF COVENANTS AND AGREEMENT
REGARDING UNDERSIZED WATER SERVICE
PROPERTY OWNERS: Oak Knoll Resort LLC APN: 035-031-009-000 5091 Solano Ave,
Napa, CA 94558
This DECLARATION OF COVENANTS AND AGREEMENT REGARDING
UNDERSIZED WATER SERVICE (hereinafter “2024 Agreement” or “Agreement”) is made and entered into this ____ day of _________ 2024, by and between the City of Napa, a a California charter city (hereinafter referred to as the “City”) and Oak Knoll Resort LLC, a California limited liability company, and the fee simple owner (“Owner”), of the Property (as defined below).
RECITALS
A. Owner is the fee simple owner of that certain real property located outside the City limits, outside the Rural Urban Limit Line (RUL), and outside the City Sphere of Influence, within the County of Napa, State of California, APN 035-031-009-000 as described in Exhibit “A” attached hereto and made a part hereof (hereinafter referred to as the “Property”).
B. In letters dated July 14, 2014, and February 12, 2016, from the City’s General Water Manager to Napa County Planning, Building & Environmental Services, the City confirmed there are existing City water services to the Property from an existing 1- inch commercial water service and existing 3/4-inch commercial water service.
C. In May 2023, Owner, submitted an application for building permits to Napa County requesting authorization to construct hotel buildings, a retail building, and a restaurant on the Property (the “Project”), using the existing 3/4-inch commercial water service and existing 1-inch commercial water service to serve the Project.
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Declaration of Covenants and Agreement Regarding Undersized Water Service
D. Owner is responsible for payment of all services provided by City under this Agreement.
E. On March 18, 2024, the City reviewed the building permit Application and returned comments noting the existing water services are undersized for the proposed Project and the Owner will be required to enter into an Undersized Water Service Agreement in order to receive City water service for the Project.
F. Pursuant to the Napa County Building Code and California Plumbing Code Chapter 6 “Water Supply and Distribution” Section 610.0, the proposed fixture count and pipe head loss for the Project exceeds the allowable hydraulic losses for the existing public water services to the Property; therefore, the Owner is required to submit to Napa County an analysis showing compliance with, or otherwise having achieved compliance with, the above Building and Plumbing Codes utilizing private onsite improvements.
G. The Owner has chosen to maintain the existing sizes of the meters and service laterals on the public side of the water services and will make improvements to the private side of the plumbing (on the Property) to ensure domestic water complies with the California Plumbing Code.
H. The City agrees to provide water service to the Property for the Project via ¾-inch and 1-inch meters in accordance with the terms of this 2024 Agreement.
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. The recitals set forth above are true and correct.
2. “Water Service” under the terms of this Agreement shall mean a piped connection to the City of Napa’s public water system that serves potable water to a property.
3. “Domestic Service” under the terms of this Agreement shall mean a water service granted to the Owner for the purposes of domestic use.
4. Water Service Requirements for Proposed Project.
a. Prior to the County’s issuance of the first building permit for the Project, Owner shall pay the City meter set fees in the amount of $2,287 ($1,075 for ¾-inch meter and $1,212 for 1-inch meter) to pay the City’s cost for the replacement of the existing water meters with ultrasonic meters. Payment shall be delivered to the City’s Water Division office at 1700 Second Street, Suite 100, Napa, California. Following payment of the meter set fees, the City will order the ultrasonic meters, and the City anticipates that it will take approximately six months for the City to acquire the meters. The City will make good faith efforts to install the ultrasonic meters as soon as reasonably practicable following the City’s acquisition of the meters.
b. Owner shall, at its own cost, purchase and install an American Water Works Association (AWWA) approved reduced pressure backflow prevention device (per City Standard W-6A) for each of the water service lines (two backflow prevention devices are required, one on the ¾-inch service and one on the 1-inch
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service) and install it in a location that is as close as feasible to each meter, on the private side of each meter. The Owner shall install the backflow devices, have them tested by an AWWA certified tester from a list of testers provided by the City, and submit the written test results to the City of Napa Water Division demonstrating compliance with AWWA standards prior to the first to occur of: (i) construction/installation of any non-potable water pipelines and non-potable or potable tanks and pumps on the Property, or (ii) the County’s issuance of a certificate of occupancy.
c. Owner shall comply with all requirements imposed by the City on customers of City water service as set forth in Napa Municipal Code (“NMC”) Title 13, particularly including NMC Chapters 13.04 through 13.10. A violation of those requirements may subject the Owner to penalties, including monetary fines or termination of Water Service under NMC Section 13.08.110.
5. Conditions of Water Service. Upon completion of the requirements of Section 4 above to the satisfaction of the City Utilities Director, City agrees to continue to serve water to the Property for the purposes of the Project subject to the following conditions and standards:
a. Water from the Water Service may be used solely for domestic use on the Property to serve the Project.
b. The Water Service may not be used to serve outside sources or properties, and City water may not be sold, given, or traded to outside sources or properties. c. Owner shall pay the City the full cost of service rate for outside City commercial water service as calculated by the most recent Cost of Service analysis as approved by resolution of the City Council. The Current Rate is $11.10 per 1,000 gallons as of January 1, 2024.
d. The City does not guarantee pressure or flow through the water service line.
Owner shall be responsible for making any improvements necessary to account for insufficiencies in the pressure or flow to the Property. Improvements made, if any, shall be installed after the backflow device and may not exceed the flow capacities of the Water Service line.
6. City Access to Property . Owner hereby grants City the right to access the Property to inspect the Property and public water facilities during normal business hours, and the right to access the Water Service line located on the Property for the purposes of confirming that City Water Service is not being provided to other properties and is not being used for purposes other than those specified in this Agreement. The City shall provide notification to the Owner at least 24 hours prior to accessing the Property under this section 6, and allow the Owner the opportunity to accompany the City representative. Any such access and inspection shall be conducted so as to reasonably minimize disturbance to any guests on the Property.
7. Testing of Backflow Device. Owner shall test the backflow device once a year for the life of the Water Service or as required by state regulations.
8. Indemnification. To the full extent permitted by law, Owner shall indemnify, hold harmless, release and defend City, its elected and appointed officials, officers, employees and agents from and against any and all actions, claims, demands,
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damages, disability, losses, expenses including attorney's fees and other defense costs and liabilities of any nature that may be asserted by any person or entity including Owner, in whole or in part, arising out of this Agreement, including the Water Service provided under this Agreement, excepting liabilities due to the admitted or adjudicated willful misconduct of City. Owner’s obligation to indemnify the City pursuant to this section shall specifically include, but not be limited to, any claim made or litigation filed against the City or liability imposed against the City. If the adjudicated or admitted willful misconduct of City has contributed to a loss, Owner shall not be obligated to indemnify City for the proportionate share of such loss caused by such willful misconduct.
9. Agreement to Run with the Land. This Agreement shall run with the land and shall be binding upon all parties having any right, title, and interest in the real Property, or any part thereof, and their heirs, successors, and assigns. This Agreement shall be recorded against the Property.
10. Default. In the event of Owner’s default, City reserves to itself all remedies available at law or in equity. Owner agrees that City has full discretion in choosing any remedy or remedies to pursue, and that the waiver of City to take enforcement action shall not be construed as a waiver of that or any subsequent default or breach. In addition to all the remedies available at law and in equity, City may also take such actions as are necessary to terminate Water Service to the Property until such time as the violation has been remedied.
11. Damages for Breach . Any material breach of this Agreement not explicitly described in this Agreement will result in a time and materials charge for any staff time incurred to address the breach, at the fully encumbered hourly rate for each City employee, and may result in termination of water service.
12. Notices. All notices or requests required or contemplated by this Agreement will be in writing and delivered to the other party’s Authorized Representative by personal delivery, U.S. Mail, nationwide overnight delivery service, email, or as otherwise specified herein. Delivery is deemed effective upon the first to occur of: (a) actual receipt by a party’s Authorized Representative, (b) actual receipt at the address identified below, or (c) three business days following deposit in the U.S. Mail of registered or certified mail sent to the address identified below. A party’s contact information, below, may be changed by providing written notice of any change to the other party.
To City: City of Napa, Utilities Department - Water Division P.O. Box 660
Napa, CA 94559-0660
[email protected]
To Owner: Oak Knoll Resort LLC
5091 Solano Ave.
Napa, CA 94558
[email protected]
[email protected]
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Declaration of Covenants and Agreement Regarding Undersized Water Service
13. General Provisions.
a. Headings. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. b. Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement. c. Governing Law, Jurisdiction, and Venue. The interpretation, validity, and enforcement of this Agreement shall be governed and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Napa.
d. Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the Owners’ duties be delegated without the written consent of City; provided, however, that the rights and obligations under this Agreement shall automatically run with the land without consent of City (as set forth in Agreement Section 9). With the exception of rights and obligations that run with the land, any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect. A consent by the City to one assignment shall not be deemed to be a consent to any subsequent assignment.
e. Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. f. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
g. Time. Time is of the essence in carrying out the duties hereunder. h. Entire Agreement. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. i. Each Party’s Role in Drafting the Agreement. Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement.
Accordingly, neither party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Agreement.
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