HomeMy WebLinkAboutC-2842(A) - Agreement Regarding Delivery and Sale of Green Acres Project Water to Median/Parkways on Jamboree RoadAGREEMENT
BETWEEN ORANGE COUNTY WATER DISTRICT AND CITY OF
NEWPORT BEACH REGARDING DELIVERY AND SALE OF
GREEN ACRES PROJECT WATER TO MEDIANS/PARKWAYS
ON JAMBOREE ROAD
THIS AGREEMENT, made and entered into as of September 30, 1996,
by and between the Orange County Water District, a political subdivision of the State
of California, hereinafter referred to as "OCWD," and the City of Newport Beach, a
Municipal Corporation, hereinafter referred to as "City," for the use of Green Acres
Project water, hereinafter referred to as "Project Water," at various medians/parkways
on Jamboree Road, hereinafter referred to as "Site."
RECITALS
A. City is the exclusive retail water purveyor including water for residential,
industrial, commercial, public agency, agricultural and other uses within
City's boundaries, and produces and distributes water in part purchased
from the Metropolitan Water District ("MWD") of Southern California and
in part produced from the Orange County ground water basin, which
basin is managed by OCWD."
B. Site consists of seven different medians/parkways on Jamboree Road in
Newport Beach, California. Site is part of the City's public landscape
median/parkway system and such Site is owned, operated and
maintained by the City. Site currently receives water from City's potable
water system for its own use.
C. City has agreed to buy reclaimed water from OCWD pursuant to the
terms and conditions specified in that certain agreement, entitled,
"Agreement Between Orange County Water District & City of Newport
Beach Regarding Distribution and Sale of Green Acres Project Water,"
dated, January 16, 1991, and as may be subsequently amended,
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hereinafter referred to as "Retailer Agreement." City executed said
Retailer Agreement for the purpose of seeking to provide various City
sites and its present and future residents with a supplemental source of
water to meet their needs and to assist in the statewide objective of
conserving and utilizing to the maximum degree possible the water of the
People of the State of California, which water shall be recovered from the
operation of OCWD's Green Acres Project water reclamation operation
for all possible beneficial uses.
D. The Green Acres Project extension into Newport Beach is being
constructed for the purpose of conserving and beneficially reusing
wastewater received by OCWD from the County Sanitation Districts of
Orange County or the Irvine Ranch Water District, hereinafter referred to
as "IRWD;" such wastewater having been treated by OCWD or IRWD to
standards established by the State Health Department and transported
and sold by OCWD as Project Water to City. Such Project Water is
suitable for use in landscape and agricultural irrigation, and for industrial
and construction purposes in lieu of potable water.
NOW, THEREFORE, in consideration of the facts recited above and the
terms, covenants and conditions herein contained, the parties agree as follows:
1. TRANSMISSION PIPELINE FACILITY
It is the intent of OCWD to construct a transmission pipeline, service
laterals and metering facilities as part of the Green Acres Project to
convey Project Water to various user sites within City boundaries,
including said Site. All Project Water will originate from either the OCWD
Green Acres Project Treatment Facility, or a similar facility operated by
IRWD. The existing Green Acres facilities include a water treatment
facility, located at the offices of OCWD at 10500 Ellis Avenue, Fountain
Valley, California, and a transmission pipeline system. All pipelines,
pipeline appurtenances and service lines within the City's incorporated
boundary's that lie upstream of the reclaimed water service meter vaults,
hereinafter the totality of such facilities shall be referred to as "OCWD
Facilities," shall be owned by OCWD. City owns, operates and maintains
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the Project water service meter vault; meter, piping and appurtenances
within meter vault; and onsite piping facilities downstream of meter vault
on said Site; hereinafter the totality of such facilities shall be referred to
as "City Facilities." The point where OCWD's service line connects to
upstream end of reclaimed water meter vault shall hereinafter be referred
to as the "Point of Connection." The portion of OCWD Facilities which are
located within City's incorporated boundaries will be operated and
maintained by City as a contractor for OCWD pursuant to the terms and
conditions set forth in the Retailer Agreement. City shall also own and
maintain all devices of said Site's onsite potable water system including,
but not limited to, drinking fountain covers, backflow preventers, and
identification tags.
2. RULES AND REGULATIONS
City agrees that during the term of this Agreement and any extension
thereof, City shall comply with all rules and regulations promulgated now
and in the future by OCWD and subsequently by City relative to the sale
and use of Project Water and those rules and regulations promulgated
now and in the future by OCWD and subsequently by City relative to the
transportation and use of Project Water, hereinafter referred to as "Project
Rules."
3. QUANTITY OF WATER TO BE PURCHASED BY CITY;
INSTANTANEOUS MAXIMUM FLOW
OCWD agrees to supply Project Water to City, and City agrees to
purchase Project Water from OCWD. The estimated annual demand for
the various Sites (seven meters) is projected to be ten (10) acre-feet per
year. Project Water flow demands at the Site's service shall not exceed
an instantaneous maximum flow of sixty (60) gallons per minute. By
entering into this Agreement, City's performance of this Agreement shall
at all times be conditioned upon the continuous operation of the Project
Facilities by OCWD. To the extent that City's current use of Site property
necessitates the use of Project Water, City will continue to purchase
Project Water. In the event that the current use of the property
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discontinues or is modified, City may modify or terminate this Agreement
as applicable.
If at any time during construction or operation of the Onsite Facilities, real
or potential hazards, or evidence of a hazard, are found to exist, the City
shall take the necessary steps within its authority to insure that the
situation is remedied, and to protect the public health, as further set forth
in the Project Rules. Such remedies may include, but shall not be limited
to the City terminating Project Water service to the Site. In the event that
said hazards are not remedied by City to the satisfaction of a "Regulatory
Agency," defined herein as the California Regional Water Quality Control
Board - Santa Ana Region, state and local health departments, and
federal, state and county agencies, OCWD may terminate Project Water
service to the Site.
4. QUALITY OF WATER TO BE PURCHASED BY CITY; PRESSURE
OCWD agrees that all Project Water delivered to City from the Project
Facilities pursuant to this Agreement shall conform to the current and
future requirements established said Regulatory Agencies, having
jurisdiction to fix minimum standards for the quality of water, with respect
to City's anticipated use at Site.
OCWD shall deliver Project Water on a continuous basis at a pressure of
not less than sixty pounds per square inch (60 psi) at the Point of
Connection between the hours of 9 p.m. and 6 a.m. City shall not exert
demand for Project Water between the hours of 6 a.m. and 9 p.m. unless
City's staff is present to ensure that the public does not come in contact
with Project Water.
5. PRICE OF PROJECT WATER
For the term of this Agreement, the price to be paid by City to OCWD for
Green Acres Project Water shall be the price then in effect under
Sections 2.4 and 2.5 of the Retailer Agreement.
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6. METERING AND MEASUREMENT OF FLOWS
City agrees that at locations on Site where irrigation water is used
exclusively, City shall maintain, at its own expense, a control valve or
valves and a meter at the Point of Connection for the purpose of
measuring the quantity of Project Water delivered to Site pursuant to the
terms of this Agreement. City shall read the service meter and record
Project Water usage for Site per the terms and conditions set forth in the
Retailer Agreement. OCWD shall be given access to said service meter
by City to take readings.
7. PAYMENT FOR PROJECT WATER
City shall issue pay warrant(s) to OCWD for the price of Project Water
delivered to the Site in accord with Section 2.7 of the Retailer Agreement.
8. LIMITATION OF USE
City understands and agrees that Project Water delivered from OCWD's
Green Acres Project Facilities pursuant to the terms hereof has restricted
uses, and City agrees to use such only upon the property of Site and only
for those uses and purposes provided for herein which are legally
permissible under the laws of the state, the Project Rules and rules
adopted by City, by OCWD, and by Regulatory Agencies.
9. PERMITS
This Agreement is conditioned on OCWD's and City's obtaining the
necessary permits relating to the use of Project Water for landscape
irrigation. Both parties agree to file any and all applications and
undertake such proceedings as may be necessary to enable one or both
parties to carry out the undertaking described herein, and to pursue such
application and proceedings in good faith and with due diligence,
including any application required to be issued to one or both parties by
Regulatory Agencies. OCWD and City understand and agree that, where
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applicable, the parties will comply with the regulations set forth in
permits.
10. MONITORING.
OCWD's responsibility for management and monitoring the Project Water
produced and delivered hereunder shall cease upon delivery to Site at
the Point of Connection. Operation, management, maintenance and
monitoring with respect to the storage, distribution and other facilities on
the Site shall be the responsibility of City. City further agrees to allow
Regulatory Agencies and/or OCWD's representatives to enter Site's
premises for monitoring, sampling, analysis and observation of Site's
Project Water facilities.
City understands and agrees that groundwater underlying property of
Site may also need to be monitored for quality. OCWD shall file for and
obtain a permit with all applicable fees waived by City to construct
groundwater monitoring well(s) as required by Regulatory Agencies. At
no expense to OCWD, City shall provide easement(s) to OCWD to
construct, at no expense to City, groundwater monitoring well(s) on Site.
City shall provide OCWD with access to such monitoring well(s) for the
purpose of carrying out all groundwater monitoring activities.
11. CONDITIONS PRECEDENT
This Agreement is conditioned upon: (1) OCWD making Project Water
available for sale; and (2) issuance of all necessary permits, certificates
and approvals by all Regulatory Agencies having jurisdiction over the
continued operation of water reclamation facilities and over the
production, distribution, sale and use of Project Water. This Agreement is
further conditioned upon approval by all federal, state and local agencies
having regulatory jurisdiction or grant funding responsibilities with regard
to the Project Facilities.
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12. CONDITIONS SUBSEQUENT
In the event that OCWD is unable to deliver Project Water through Project
facilities, OCWD reserves the right to notify City with a minimum of 24
hours advance notice, except in event of emergencies, that said
deliveries shall temporarily cease. OCWD shall provide City with a
minimum of 24 hours advance notice when resumption of Project Water
deliveries is expected at City's Site. In the event OCWD is unable to
provide delivery of Project Water, City may temporarily provide water to
Site from alternative sources in accordance with Project Rules and
requirements of any Regulatory Agency having jurisdiction over Site.
Furthermore, in the event that OCWD ceases producing and distributing
Project Water or in the event that the treatment criteria imposed by any
Regulatory Agency exceeds those existing as of the date of this
Agreement, either Party shall have the option of canceling this
Agreement. OCWD shall convert service on the Site back to a potable
water system at no expense to City if this Agreement is canceled within
ten (10) years immediately following the date hereof. The cost of
conversion back to a potable system shall be borne by City if said
conversion occurs after ten (10) years from the date of this Agreement.
13. LIMITATION OF CONTRACTUAL COMMITMENT
Nothing herein shall be construed to commit any portion of the Project
Water from the Green Acres Project beyond that usable by City. City
reserves the right to enter into contracts with others for the sale of any
Project Water.
The term of this Agreement shall be ten (10) years from the day and year
first above written. The parties do hereby agree that any portion of this
Agreement may be revised by written amendment at any time by mutual
agreement of the parties hereto. The parties do hereby also agree that
one (1) year prior to the end of the term of this Agreement, all of the terms
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herein shall be reviewed, and if all of the terms are mutually agreed upon
following such review, this Agreement shall be renewed.
15. ASSIGNMENT
This Agreement and the rights and benefits of City hereunder may be
assigned and transferred by City to any entity which assumes the
responsibilities and obligations of City for the retail sale and distribution
of Project Water within City's boundaries.
16. ATTORNEYS' FEES AND EXPENSES
In the event that either party hereto brings any action, suit, arbitration or
other proceeding against the other party arising out of or relating to the
subject matter of this Agreement, its validity or any of the terms or
provisions thereof, then the prevailing party in such action, suit,
arbitration or other proceeding shall recover from the other party its
reasonable attorneys' fees costs incurred in connection therewith, in
addition to any other relief to which it may be entitled. Said attorneys'
fees shall include such fees for prosecuting or defending any appeal and
shall be recoverable, and shall be awarded for any supplemental
proceedings until the final judgment is satisfied in full.
17. NOTICES
All notices, payments, transmittals of documentation and other writings
required or permitted to be delivered or transmitted to either of the parties
hereto under this Agreement shall be personally served or deposited in
the United States mail depository first class postage prepaid, and
addressed as follows:
OCWD: Orange County Water District
P.O. Box 8300
Fountain Valley, CA 92728-8300
Attention: General Manager
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CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92658-8915
Attention: Public Works Director
or such other address as OCWD or City shall direct in writing. Service of
any instrument or writing by mail shall be deemed complete 48 hours
after depositing in United States mail depository.
18. SUCCESSORS
This Agreement, and all of the provisions herein, shall be binding upon
and inure to the benefit of OCWD and City, and their respective
successors and assigns.
19. CONFLICTS
In the event of a conflict between the provisions of this Agreement and
the provisions of the Retailer Agreement, the provisions of the this
Agreement shall prevail.
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IN WITNESS WHEREOF, the parties herein have executed this Agreement
as of the date set forth above.
CITY OF NEWPORT BEACH,
a municipal corporation
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
ORANGE COUNTY WATER DISTRICT,
a political subdivision of the State of California
APPROVED AS TO FORM
ATTEST:
LaVonne Harkless
City Clerk >
By By /V 0,f I
General Counsel General Manager
By
President
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