HomeMy WebLinkAbout11 - Wastewater Flow Agreement with Costa Mesa Sanitary District - Staff MemoMEMORANDUM
Date: August 13, 2019
To: Honorable Mayor & Members of City Council
From: Mark Vukojevic, Utilities Director M.
Subject: Regular Meeting August 13, 2019, Agenda Item 11 — Utilities
Corrections to Wastewater Flow Agreement with Costa Department
Mesa Sanitary District
Since the posting of the agenda, the Utilities Department is requesting a correction in the
Discussion section of the staff report, corrections to the Recitals and Service period of the
Agreement and corrections to two properties shown on the Exhibit A map.
Correction to the Staff Report:
Staff Report — page 11-2, 2n1 paragraph: 20 -year form and..." corrected to "... a 10 -year
term..."
Correction to the Agreement:
Recital No. 1: "...and Fetalle users..." corrected to "...and residential users..."
Recital No. 3: "...and modify the R MbeF of properties nerved by f`nACn ." is removed
Recital No. 4: "...expired in August, 209..." corrected to "...expired in August, 1999..."
Section 7.2.3 c): "...nno hURdred fire dollars and eight oonto ($105.08)..." corrected to "...one
hundred five dollars and forty-eight cents ($105.48)..."
Section 7.4: Change calendar year to fiscal year
Exhibit A, Sewer Service Boundary Map: Revised, 1815 and 1821 Tradewinds removed from
the map.
Submitted by:
Mark Vukojevic
Utilities Director
AGREEMENT FOR WASTEWATER COLLECTION SERVICES
BETWEEN THE COSTA MESA SANITARY DISTRICT
AND THE CITY OF NEWPORT BEACH
THIS AGREEMENT FOR WASTEWATER COLLECTION SERVICES BETWEEN THE
COSTA MESA SANITARY DISTRICT AND THE CITY OF NEWPORT BEACH ("Agreement"), is
made and entered into this 22nd day of August 2019, ("Effective Date") by and between the
COSTA MESA SANITARY DISTRICT, a California special district formed under the Sanitary
District Act of 1923 ("CMSD"), and CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"). CMSD and City are sometimes individually referred to herein
as "Party" and collectively as "Parties."
RECITALS
WHEREAS, CMSD provides solid waste and wastewater collection services to public,
commercial, industrial and retai4erresidential users in the City of Costa Mesa, portions of the
City of Newport Beach and unincorporated areas of Orange County ("CMSD's Jurisdictional
Limits");
WHEREAS, in 1979, City and CMSD entered into a sewer service and collection
agreement wherein CMSD would collect sanitary sewer flow from certain properties within the
geographical limits of City, yet outside CMSD's Jurisdictional Limits and convey said sanitary
sewer flow to the Orange County Sanitation District (1979 Agreement");
WHEREAS, on December 12, 1991, City and CMSD amended the 1979 Agreement to
update the sewer service fees and modify the number of properties served by room (1991
Amendment");
WHEREAS, the 1991 Amendment expired in August, 29091999, however, CMSD
continues to provide wastewater collection services to the parcels identified in the 1991
Agreement; and
WHEREAS, the Parties desire to establish by this Agreement fixed terms and conditions
for wastewater collection services by CMSD to certain parcels located within City along with
other rights and obligations of the Parties.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
Section 1. Term. The term of this Agreement shall commence on the Effective Date, and
shall terminate on August 21, 2029 unless terminated sooner by either Party's giving one
hundred eighty (180) days' prior written notice of termination.
Section 2. Sewer Services. CMSD authorizes the conveyance, treatment and disposal of or
recycling of all wastewater received ("Sewer Services") from the parcels within the boundary set
forth in Exhibit A and more specifically identified in Exhibit B through CMSD's mainline sewer
facilities ("Sewer Services") subject to the terms and conditions as set forth in this Agreement.
Should the Orange County Local Agency Formation Commission subsequently alter the
respective boundaries of the CMSD or the City or the City's sphere of influence as defined by
California Government Code section 56076 or any successor provision, the Parties agree to
meet and confer to address any amendment to this Agreement made necessary or appropriate
by that action.
Section 3. Facilities. The terms and conditions of this Agreement are intended to be
applicable to residential development and institutional, office and professional developments
within the geographical limits of City and within City's sphere of influence, but is not applicable
to developments other than those specifically identified in Exhibits A and B unless the Parties
modify the number of properties in accordance with Section 6 of this Agreement.
Section 4. Construction. New construction of sanitary sewer facilities, including manholes,
pump stations, underground laterals and mains authorized by CMSD to operate by the CMSD or
which are to flow to its facilities by persons or entities other than CMSD shall be constructed in
accordance with plans and specifications approved by the CMSD Engineer and in accordance
with all laws, regulations, building and plumbing and electrical codes of whatever kind and
wherever applicable.
Section 5. Maintenance and Repair. CMSD shall not be responsible for the maintenance,
replacement, repair and upkeep of any of that portion of the mainline sewer facilities which are
installed outside of CMSD's Jurisdictional Limits. CMSD's responsibility for replacement, repair
and upkeep shall begin at a point downstream of City's mainline sewer facilities connection with
CMSD's mainline sewer facilities. CMSD shall not be responsible for the maintenance, upkeep,
service and repair or replacement of laterals lines.
Section 6. Number of Properties. CMSD currently provides Sewer Services to one
hundred forty-six (146) parcels identified in Exhibits A and B. City may increase or decrease
the number of parcels CMSD provides Sewer Services to by providing CMSD's Staff
Representative written notification no less than forty-five (45) days prior to annual invoicing. In
the event of an increase or decrease in the number of parcels served, the annual invoice shall
be prorated to reflect the total number of days each parcel received Sewer Services under this
Agreement.
Section 7. Sewer Service Fee.
7.1 The CMSD shall impose an annual service fee in lieu of annexation to the CMSD
and in lieu of an ad valorem property tax for the Sewer Services provided herein.
7.2 CMSD's Sewer Service fees are established by the "Costa Mesa Sanitary District
Sewer Rate Study" and adopted by CMSD in accordance with Articles XIIIC and XIIID of the
California Constitution, Government Code section 53750 et. seq. and other applicable laws. City
shall pay such Sewer Service fees to the CMSD for parcels receiving services in the amounts
set by CMSD as may be amended from time to time. The Sewer Service fees for Fiscal Year
2019-20 are as follows:
7.2.1 Residential Dwelling Units. For residential dwelling units connected to
CMSD's sewer system:
a) Ninety-two dollars and thirty-eight cents ($92.38) per year for each single-
family dwelling unit,
b) Fifty-four dollars and twenty-one cents ($54.21) per year for each multi -family
dwelling unit,
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7.2.2 CITY Residential Dwelling Units. For residential dwelling units directly
connected to City's sewer system, Tract 3801 and Tract 4444:
a) Ninety percent (90%) of the rate set forth in Section 7.2.1(a) for single-family
dwelling units,
b) Ninety percent (90%) of the rate set forth in Section 7.2.1(b) for multi -family
dwelling unit,
7.2.3 Non -Residential Parcels. For non-residential parcels:
a) Forty-one dollars and nine cents ($41.09) per 1,000 sq. ft. for parcels generating
average strength flow,
b) Forty-four dollars and eighty-one cents ($44.81) per 1,000 sq. ft. for parcels
generating high strength flows, and
c) One hundred five dollars and forty-eight cents ($98105.48) per 1,000 sq. ft.
for parcels generating industrial strength flows.
7.3 The Sewer Service fees provided herein may be adjusted by CMSD to the extent
permitted by Articles XIIIC and MID of the California Constitution, Government Code section
53750 et. seq. and other applicable laws. In the event of an adjustment in Sewer Service fees,
CMSD shall notify City within thirty (30) days of each adoption or rates under this Section 7.
7.4 CMSD shall invoice City for Sewer Service fees annually prior to July 1 of each
calendar fiscal year. In the event any parcel(s) identified in Exhibits A and B, as may be
amended in accordance with Section 6, is annexed into the CMSD's Jurisdictional Limits during
a calendar fiscal year, CMSD shall prorate the amount owed for that particular parcel(s) based
upon the number of months served during the annual invoice period. Example: If one hundred
(100) parcels were annexed into the CMSD on January 1 of a calendar year, the Sewer Service
fee shall be for six (6) months (July -December) for said annexed properties.
Section 8. Liability. CMSD shall be responsible for sewer spills and releases of sanitary
sewer within CMSD's Jurisdictional Limits caused by CMSD's negligence or willful misconduct
and agrees to indemnify, defend and hold harmless the City, its City Council, boards and
commissions, officers, agents, volunteers and employees from and against any and all claims,
demands, damages, actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses related to CMSD's negligence or willful misconduct as provided
herein.
City shall be responsible for sewer spills and releases of sanitary sewer outside the CMSD's
Jurisdictional Limits but within the geographical limits of City caused by City's negligence or
willful misconduct and agrees to indemnify, defend and hold harmless CMSD, its Board,
commissions, officers, agents, volunteers and employees from and against any and all claims,
demands, damages actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses related to City's negligence or willful misconduct as provided
herein.
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A Party causing or contributing to spills or releases of wastewater within the other Party's area
of responsibility as defined in this Section 8 shall be liable for damage, cleanup, and regulatory
fines of said spills and releases.
Section 9. Staff Representatives. Each Party shall appoint one (1) staff representative
and one (1) alternate staff representative to work with the staff representatives and alternate
representatives of other Party to facilitate communication and aid in the administration of this
Agreement. City's staff representative is the Utilities Director and CMSD's staff representative is
the General Manager.
Section 10. Notices. Any notice or other document and all billings and payments required or
permitted to be given by either Party to the other Party shall be deemed received upon personal
delivery to the recipient or two (2) business days after deposit in the United States mail in the
State of California, with postage prepaid, and addressed to the Party for whom intended at the
following address:
To CMSD: Costa Mesa Sanitary District
290 Paularino Avenue
Costa Mesa, CA 92626
Attention: General Manager
Telephone: (949) 645-8400
E-mail: scarroll@crosdca.gov
To CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attention: Utilities Director
Telephone: (949) 644-3011
E-mail: mvukojevic@newportbeachca.gov
Billing: City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attention: Accounts Payable
Telephone: (949) 644-3117
E-mail: ap@newportbeachca.gov
Either Party may update its addresses for notice from time to time by providing prior written
notice to the other Party given as required by this section.
Section 11. General Provisions.
11.1. Neither Party shall delegate, transfer, subcontract or assign its duties or rights
hereunder, either in whole or in part, without the other Party's prior written consent, and any
attempt to do so shall be void and of no effect. Neither Party shall be obligated or liable under
this Agreement to any person other than the Other Party. There is no intended third -party
beneficiary of any right or obligation assumed by the Parties.
11.2. This Agreement shall be binding on the successors and assigns of the Parties.
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11.3. Time is of the essence for each and every provision of this Agreement.
11.4. The captions appearing at the commencement of the sections hereof, and in any
paragraph thereof, are descriptive only and for convenience in reference to this Agreement.
Should there be any conflict between such heading, and the section or paragraph thereof at the
head of which it appears, the section or paragraph thereof, as the case may be, and not such
heading, shall control and govern in the construction of this Agreement. Masculine or feminine
pronouns shall be substituted for the neuter form and vice versa, and the plural shall be
substituted for the singular form and vice versa, in any place or places herein in which the
context requires such substitution (s).
11.5. The waiver by a Party of any breach of any term, covenant or condition herein contained
shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent
breach of the same or any other term, covenant or condition herein contained. No term,
covenant or condition of this Agreement shall be deemed to have been waived by a Party
unless in writing signed by one authorized to bind the Party asserted to have consented to the
waiver.
11.6. A Party shall not be liable for any failure to perform if it presents evidence acceptable to
the other Party that such failure was due to causes beyond the control and without the fault or
negligence of the Party claiming the benefit of this paragraph.
11.7. Each right, power and remedy provided for herein or now or hereafter existing at law, in
equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right,
power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or
otherwise. The exercise, the commencement of the exercise, or the forbearance from the
exercise by either Party of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by such Party of any or all of such other rights,
powers or remedies.
11.8. If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall
be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability,
and shall be enforceable in its amended form. In such event, the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
11.9. Exhibits A and B are hereby incorporated into this Agreement. In the event of any
material discrepancy between the provisions of this Agreement and the provisions of any
exhibit, the Agreement shall prevail. This instrument contains the entire Agreement between
City and CMSD with respect to its subject matter. No other, prior oral or written agreements are
binding upon the Parties. Except as provided in Section 6, amendments to this Agreement shall
be effective and binding only if made in writing and executed on behalf of both Parties.
11.10. Each Party had an opportunity to consult with an attorney in reviewing and drafting this
Agreement. Therefore, the rule construing ambiguities against a drafting party shall not apply.
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Exhibits:
A — Sewer Service Boundary
B — Parcels Receiving Sewer Services
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
hereinabove written.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By:
Aaron C. Harp
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
By:
Alan R. Burns
Costa Mesa Sanitary District Legal Counsel
A
CITY OF NEWPORT BEACH,
a California municipal corporation
By:
Diane B. Dixon
Mayor
COSTA MESA SANITARY DISTRICT
By:
James Ferryman
President, Board of Directors
I *:/:11:3 I r_1
Sewer Service Boundary
EXHIBIT B
Parcels Receiving Sewer Services
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UPPER
NEWPORT
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i
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ASi
�o�� Sewer Service Boundary
Properties W1Sewer Flows to CMSD
Properties W/O Sewer Connections
e Faet �1�
' Properties with Sewer Mows to
Costa Mesa Sanitary District NE WPP RT 3 E A C H
City of Newport Beach
GIS - f w/ y uaryDivi
on
Exhibit A January X9,, 2019
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