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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, Pagel of 10 ocwi)1)0c. 4) -L2 -L- /� GTAR NO23f .3 7 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 Page 2 of 10 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 Page 3 of 10 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. Page 4 of 10 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 Page 5 of 10 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. Page 6 of 10 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 Page 7 of 10 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 Page 8 of 10 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. Page 9 of 10 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 Page 10 of 10