Loading...
HomeMy WebLinkAboutC-2180 - Interconnection of facilities & Interim Sewer Service�gVV�Rr m CITY OF NEWPORT BEACH . CALIFORNIA City flail 1AL,FIDwN� 3300 W. Newport Blvd. Area Code 714 May 21, 1980 DATE TO: FINANCE DIRECTOR FROM: City Clerk SUBJECT: Contract No. 2180 Depription of Contract .Interim Sewer Service Authorized. by Resolution No. 9766 , adapted on April 14, 1980 Effective date of Contract Mav 14, 1980 Contract with O C Sanitation District 5 & Irvine RwQn Water diGtrict Address 10844 .Ellis Avenue 4201 Cawcs Drive Fountain Valley, CA 92708 Irvine, CA 92715 Amount of Contract see Contract •City Clerk a U V F_� March 29, 1982 Mr. Dick Hoffstadt CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA. 92663 cc Subject: Bond For Sewer Interconnect Dear Dick: v r.'s'J C{7:Y OF ^,KEW 3t ; BEACH, 0 Z a;;�i;R, Attached is a copy of the $27,000 sewer interconnect bond which we discussed on the telephone March 29. The attach- ed bond was required as a condition of the May 14, 1980 sewer agreement between the Irvine Ranch Water District, County Sanitation District and City of Newport Beach. Very truLv yours, Robert J. app Director of Forward Planning RJT /sh attachment ' vG THE C,JADIA J f " tCEiuED4N.: ,,1: W . Fib: Y CENT€?AL REGOiiDS KNOW ALL MEN BY THESE PRESENTS, THAT we, DAON CORPORATION INDE•. "JIT COM NY BOND as Principal, and THE CANADIAN INDE:-?NITY CO;PAN'Y, a corporation a•.thorized to transact a general surety business in.the State of California, as Surety, are held and firmly bound unto THE CITY OF NEWPORT BEACH, A CHARTERED MUNICIPAL CALIFORNIA CORPORATION as Obligee in the sum of TWENTY SEVEN THOUSAND AND N01100 * * : .. .. „ .. .. .. .. .. .. .. .. .. .. .. .. - rt — DOLLARS ($27,000.00 ' =), for the payment whereof, in lawful money of the United States, said Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and sever- ally, firmly by these presents. THE CONDITION OF THE FOREGOING OBLIGATION IS SUCH THAT, ,,HERF4S, the above bounden Principal has entered into an agreement dated _ 1S8( with the Obligee: TO INSURE FAI;ENT OF THE COST OF CONSIRUMON OF AN IN';TERCO ^::�_CTION SYSTE!,' PURSUANT TO SECTION 5 OF SAID AGr,EETIENT. E if tide --love i;oun:'aa Pr'illCik 01 shall ell and _ruly *-.ae the furegoir.g as per the .c• c: =nt, tF:en this ob;iL�ation -.';zll be void; otherwise to r ,. -:_.. in full forcc and ei`rct. Signed this _15TH _ day of _ *LAY 1580 MON CORPOPATION BY: BY: �i�r�-�' -• h',ND NO. B392019 _ THE C1,NADLAN IND:2,!N1TY CC::�A.Ny ris121IL7. .f: 5540.00 -- - -- — k_,.r ;♦ �-Hc— *LANIADIAN 1ND- _V'N*Y CO,V PANY /1 F� 67S SOUTH PARK VIEW • Los ANGELES 9005.7 • 1ELEPHQNE 3— 6101 BOND KNOW ALL MEN BY THESE PRESENTS, THAT we, _ DAON CORPORATION , as Principal, and THE CkN-kDLAN INDE -1NITY CO:•1PANY, a corporation authorized to transact a general Buret business•in the State of California, as Surety, are held and firmly bound unto STATE OF CALIFORN(A 1 > Orange — _ Is E COX iY OF� 0 epn way �8 �8O before me, the und,,s;gned, a Notary Public In and for W.A. Colton III, Senior Vice President, Land o said gate, personally appeared _. known to me to be the '- - - - - -- Pres;dent, and_ Thsf^a5 J R i e 1 1 V "rc c -�. F,s,pr Itj 4 , ° known to me to be the President dent Secretary of the corporation that e>ecuted the within instrument, Y < and known to me to be the pe:sons who exe cued the within _ insbun.ent on behalf of the co•puation ;herein carved, and ec- ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦� ♦� ♦� ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦� ♦ ♦ ♦ ♦ ♦� OFFICIAL SEAL kncwledBed to me that such corporat;on execv:ed the w;thin. _ .? DIANE NIARIE BONES ` ir.J w�snt p.naoaN to its b, 'awl or a of it, Loard of • C. n'' ^ += NOTARY PUBLIC- CALIFORNIA i a Gnat •Y' PRIHC:PAL OFFICE IN ♦ .. ORANGE COUNTY 1 �( my Co.-- ission Expi•es A,. J 25, 1983 o V.;Tr.FSS my hand and or.--:al seal. �1 ♦♦f♦ ♦ ♦ ♦ ♦ ♦ ♦� ♦♦ ♦ ♦f ♦ ♦ ♦ ♦f♦ ♦ ♦1�1♦ Diane Marie Bones Nia > -e (-. d or Primed) - - -_ — - -- .._. 1TI-4 uea to, eF.c'a' n: r:al .eary State of California County of LOS ANGELES Iss: On MAY 15 — 1980 before me personally appeared PSDA I. `AEL'_ ^.! r ---RA _. known to me to be an Attorney.in-Fact of THE CANADIAN INDEh9NITY CONIPANY, the corporation described in the within instrument, and known to me to be the parson tvho executed the said instrument as the act o1 The Canadian Indemnity Company in accordance with authority conferred by said Company. ..............A ^NA t+I'NAfI....• SIA .. /.ter_ - \\ •rtcce Vau[ � /,,. ^.-,. /��- _� ;.r. 'ir- '_1_�/ Notary. Public 9; C: -,In F.;.: r.E pare` 23. 7.'64 Fwm 51a N as Obligee kRS ($27,000.00 rincipal and Suret 'jointly and sever ted , Tr RCc:fECI I ON - -- +tair':ri s.e to r-,::..=in J r T1T1 CO'; ?.4::Y E THE CANADIAN INDEMNITY C0111 ;? NY POWER OF ATTORNEY No. US79 = 1 KNOW ALL MEN BY THESE PRESENTS, that THE CANADIAN INDEMNITY COMPANY, of WINNIPEG, MANITOBA, CANADA, has made, Constituted and appointed, and by these presents does hereby make, constitute and appoint AIDA I. WEERASEKERA Los Angeles, California its true, sufficient and lawful attorney, with full power and authority to make, execute, attach its corporate seal thereto, and deliver for it, in its name and on its behalf, , BONDS, GUARANTEES OR OTHER OBLIGATIONS OF SURETYSHIP hereby giving its said attomey full power and authority to do everything N +hatsoever requisite and necessary to be done for the purpose of making, executing and delivering such obliations as fully as the officers of the said THE CANADIAN INDEMNITY COMPANY could do, if personally present, and hereby ratifying and confirming all that its said attorney shalt la%,fully do, or cause to be done by virtue hereof, but resen ing to itself full poker of substitution and revocation. IN WI FXESS 1'; HEREOF, the said THE CANADIAN INDEMNITY C r.".? NY 1 ..z e.a: >ed 0 seal lo be he:euni0 affixed and These presents to be July -:Necutcd by its proper officers at the Executive Offices of the Co'a :any ir.:be CITY OF TORONTO, ONTARIO, CANADA, on the 4th day of M• v, 1979 A.D. THE CANADIAN INDEMINITY COMPANY ell, G. F. W'at s', Vice— President Unaerwritir.g 1 W. B:'Gresham, Secretary Subject: IRT,D /San 5 /City of Newport Beach Agreement _res ter of Credit -z7-Bond -- Attached pry raring the tion 5 of the District, Cori are two sets of documents for your use in letter of credit and bond pursuant to Sec- agreement between the Irvine Ranch iSater ,ty Sanitation District No. 5 and the City of 1. °_ND. The same format can be used as in the attached Lcr:d which Daon submitted to San 5 as advance ccn,,ection charges to pay for the new San 5 se-,.ar facilities. The oblicee will be "THE CITY OF NEWPORT BEACH, A Clia:,TERED `UNICIPAL CkLIFORNIA CORPORATION." The sum of the b—nd s'.-ou'd be $27,000.00 pursuant to the attached esti;r.,te cuL- :itted by Don Seitz. The condition of the foregoiiig obllication the above 'bounden pri ncical has entered into an agreement dated , 1980, with the oblicee to insure.pay�ment of the cost of construc- tion of an interconnection syste rsua to Section 5 of said agreement, in the sum of $27,000. " 2. LETTER OF CREDIT. See the Bank of America form - "Irrevocable Letter of Credit" and wording suggested in the attached letter from Joan Arneson, of Alexander Bowie's office. The amount to be used in the irrevocable letter of credit is the sum of $576,198.00, as set forth in Exhibit "D" (s_�uplement to Exhibit "B ") as prepared by Don Seitz. t4SF� INSU CE DE T. .L .' _ . ..- ., .. Er..,... `.. SS5 CAPITOL MALL. I,L: 450 RECEIVED •• ♦ '• '• - -•f ♦••. SAC n A M C I. TO. C A L I i 0 n N: A _5819 :916. 444--'900 May 6, 1980 _. MEMOP,ANDUM To: Michael K. Ryan From: Dennis D. O'Neil Subject: IRT,D /San 5 /City of Newport Beach Agreement _res ter of Credit -z7-Bond -- Attached pry raring the tion 5 of the District, Cori are two sets of documents for your use in letter of credit and bond pursuant to Sec- agreement between the Irvine Ranch iSater ,ty Sanitation District No. 5 and the City of 1. °_ND. The same format can be used as in the attached Lcr:d which Daon submitted to San 5 as advance ccn,,ection charges to pay for the new San 5 se-,.ar facilities. The oblicee will be "THE CITY OF NEWPORT BEACH, A Clia:,TERED `UNICIPAL CkLIFORNIA CORPORATION." The sum of the b—nd s'.-ou'd be $27,000.00 pursuant to the attached esti;r.,te cuL- :itted by Don Seitz. The condition of the foregoiiig obllication the above 'bounden pri ncical has entered into an agreement dated , 1980, with the oblicee to insure.pay�ment of the cost of construc- tion of an interconnection syste rsua to Section 5 of said agreement, in the sum of $27,000. " 2. LETTER OF CREDIT. See the Bank of America form - "Irrevocable Letter of Credit" and wording suggested in the attached letter from Joan Arneson, of Alexander Bowie's office. The amount to be used in the irrevocable letter of credit is the sum of $576,198.00, as set forth in Exhibit "D" (s_�uplement to Exhibit "B ") as prepared by Don Seitz. Michael K. Ryan May 6, 1980 Page Two Assuming the agreement is approved by the Sanitation District No. 5 Board next Wednesday night, we can use that date, May 19, 1980, for purposes of the bond and irrevocable letter of credit. I would imagine that the bonding co *;•.,-,any and bank would want a fully executed copy of the agreement for their files. If you have any questions concerning the above inforrea- tion, please give me a call 'at your convenience. i Dennis D. O'Neil DDO : rth i,..I .. .i . . . r. April 25, 1980 Mr. Dennis O'Neill F,cDonough, Holland & Allen 4041 MacArthur Blvd., Suite 190 Newport Beach, CA 92660 Dear Dennis: As requested, we have prepared a construction estimate for the City of Newport Beach /Irvine Ranch : -later District interconnection to serve the Aeronutronic Ford Tentative Tract 10391. This estimate is as follows: 400 LF Pavement Removal & Replacement @ S8.00 /LF = S 3,200.00 830 LF of 8 -Inch Sewer @ $20.00 /LF = 16,600.00 Connection to Existing Manhole Stub @ S500 ea. = 500.00 2 "anhoies @ $2000 ea. = 4,000.00 12 LF Concrete Encase5ient @ S25.00 /LF = 300.00 Subtotal = S24,600.00 Contingencies = 2,400.00 Total = $27,000.00 Tha estica'ed construction cost for the interconnection can be used for the bond to be submitted by Daon. Very trul y yours, -'Donald C. Seitz Vice President 4later Resources DCS:pb MARTIN M,DONOUGH ALFRED E. HOLLAND ORVCE F. ALLEN V. BARLOW GOFF JOSEPH E. COOMES,JR. WILLIAM G. HOLLIMAN, JR, DAVID J. SPOTTIS W OOO ELMER R. MXIAttGFF RICHARD W. NICHOLS DONALD C. POOLE RICHARD W. OSEN RICHARD E. BRANDT GARY F. LOVERIDGE G. RICHARD BROWN 40 DENNIS 0.ONEIL DAVID W. POST SUSAN M. EOLING BRUCE McDONOUGH ALICE A. WOODYARD MICHAEL T. FOGARTY D. WILLIAM DENTINO ANN M. MORRIS DAVID F. BEATTY HARRY E. HULL JR. RICHARD L. OECOSNY, JR. JEFFRY R. JONES WILLIAM L.OWEN 40 MCDoxouGH, HOLLAND & ALLEN A PROFESSIONAL CORPORATION ATTORNEYS 555 CAPITOL MALL, SUITE 950 SACRAMENTO, CALIFORNIA 95814 (916) 444 -3900 May 19, 1980 Doris George, City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Dear Doris: FELIX S. WAHRHAFTIG (1909-1969) NEWPORT BEACH OFFICE 4041 MXC ARTHUR BOULEVARD, SUITE 190 NEWPORT BEACH, CALIFORNIA 92660 (7I4) 833 -2304 & O, 2 F , L\ 6��0 IN REPLY REFER TO: 77010/002 Enclosed herein please find a duplicate original copy of the agreement between the Irvine Ranch Water District, City of Newport Beach and Sanitation District No. 5 for interim sewer service to the Ford site, dated May 14, 1980. The agreement provides on page 5, section 5, for the posting of a bond guaranteeing payment of the construction costs for the interconnection system which is the subject of the agreement. I am having this bond prepared at this time and will be reviewing it with the City Attorney and Public Works Director within the next ten days. Thereafter, I will lodge the bond with you for retention in the official file on this matter. Ver, truly yours, Dennis D. O'Neil DDO:mh Enclosure CC: Rita J. Brown, County Sanitation District No. 5 Michael K. Ryan •h. � 40780 -14 mh AGREEMENT FOR INTERCONNECTION OF FACILITIES AND INTERIM SEWER SERVICE THIS AGREEMENT, for purposes of identification, is hereby dated and effective the 14th day of May , 1980, and is BY AND BETWEEN AND AND IRVINE RANCH WATER DISTRICT, a California Water District (hereinafter "IRWD ") COUNTY SANITATION DISTRICT NO. 5 OF ORANGE COUNTY, CALIFORNIA (hereinafter referred to as "District 5 ") CITY OF NEWPORT BEACH, a Charter City (hereinafter referred to as "City "). RECITALS WHEREAS, this agreement is intended by the parties to allow for an interim service and emergency interconnection of facilities by means of an existing IRWD gravity sewer pending construction of either a District 5 Jamboree Road Pump Station and Force Main or the Back Bay Drive gravity line (hereinafter "District 5 Facilities ") and for permanent service only in the event District 5 is unable to construct such District 5 Facilities, thereby providing service to the Residential Project as hereinafter defined; and WHEREAS, the City has approved Tentative Map of Tract 10391 permitting development of 300 residential units and ancillary facilities, not to exceed ten additional dwelling unit equivalents, on approximately 100 acres of land, generally known as the Ford Aeronutronic site (hereinafter "the Residential s 0 Project "), more specifically designated in the attached drawing marked Exhibit "A" and made a part herein by this reference; and WHEREAS, the Residential Project is planned to be developed in phases based on filing separate Final Tract Maps as generally depicted on Exhibit "C" attached hereto and made a part herein by this reference; and WHEREAS, Residential Project is located tributary to the proposed District 5 Facilities within the boundaries of District 5 and is uniquely situated adjacent to an existing IRWD gravity sewer thereby facilitating an interconnection for both an interim sewer service system and a permanent emergency failsafe overflow system as depicted on Exhibit "A" to this Agreement; and WHEREAS, District 5 is in the planning process for the construction and installation of the District 5 Facilities to receive and dispose of the sewage and wastewater antici- pated to be generated from the Residential Project; and WHEREAS, District 5 has adopted Ordinance No. 510, which among other things permits interim or alternative facilities or methods of disposing of the Residential Pro- ject wastewater upon a finding that District 5 reasonably expects to have permanent additional facilities available to serve the Project in a known period of time; and WHEREAS, on March 12, 1980, District 5 adopted Resolu- tion No. 80 -58 -5 approving interim sewer service to Tentative Tract No. 10391 by an interconnection to IRWD upon a finding that District 5 expects to have permanent additional facilities available to serve the Residential Project within approximately two years; and WHEREAS, the County Sanitation Districts of Orange County, including District 5, City and IRWD, heretofore have entered into agreements from time to time to receive, treat and dispose of sewage from various areas located within the -2- County Sanitation Districts of Orange County, including District 5, in order to avoid unnecessary expenditure of public funds and duplication of facilities, to minimize operation and maintenance cost, and to provide for temporary and /or emergency interconnection so as to avoid occurrence of instances where sewage is not capable of being disposed of in a manner consistent with the public health, safety and welfare; and WHEREAS, IRWD, City and District 5 have found and determined that the herein proposed interconnection facilities will provide: (i) a temporary interim interconnection; (ii) a permanent emergency interconnection; and if necessary (iii) a permanent interconnection. The proposed interconnec- tion facilities would connect to an existing IRWD line located to the north and adjacent to the Residential Project and would be in the best interests of City and the respective districts; and WHEREAS, the parties believe that the formulae set forth herein for calculating the payment due upon connection of the Residential Project to IRWD's facilities, refund upon connection to District 5, user fees, and emergency fail -safe system charge are a reasonably precise and fair method of calculating said amounts; and WHEREAS, City recognizes that construction of the Interconnection System will provide a means of disposing of sewage and wastewater from the Residential Project and agrees to issue building permits for said Residential Project based on sewer service being provided by said Interconnection System pursuant to the terms and conditions of this Agreement, and at such time as plans have been checked and building permit fees are paid. NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth in Part I between IRWD and City, and in Part II between IRWD, City and District 5, the parties hereto agree as follows: -3- PART I: COVENANTS BETWEEN IRWD AND CITY Section 1. Interconnection of Facilities. It is agreed by IRWD and City that an interconnection between the sewage and wastewater facilities of IRWD and City as de- picted on Exhibit "A" to this Agreement (hereinafter re- ferred to as the "Interconnection System "), shall be estab- lished consistent with the requirements of the IRWD and sound utility management principles to provide an emergency and interim and, if necessary, permanent means of receiving, treating and disposing of the sewage and wastewater from the Residential Project and ancillary facilities to be con- structed according to Tentative Map of Tract 10391 of City. Section 2. Interconnection Construction Costs. It is understood that all costs associated with the construction of the Interconnection System, including but not limited to the preparation of the plans, specifications and contract documents, engineering and legal costs associated therewith, preparation of any required environmental documentation, review and approval of plans and specifications and on -site inspections by IRWD and City, and all costs for labor and materials, shall be borne by the developer or developers of the Residential Project. Section 3. Ownership, Operation and Maintenance. Upon completion of construction and acceptance by IRWD of the Interconnection System, title to said facilities shall vest in IRWD as depicted on Exhibit "A" to this Agreement. All other facilities for the residential project, inclusive, but not by way of limitation, of those depicted on Exhibit "A ", shall be owned, operated and maintained by the City. IRWD shall own and be responsible for only the operation and maintenance of the Interconnection System. In the event District 5 cannot provide permanent service as herein con- templated, all the ownership of the herein described facili- ties, as well as the obligation of operation and maintenance, shall remain unchanged so long as this Agreement remains in -4- .q 1 r effect. Section 4. Payment Due Upon Connection, Fees and Refund. The payment due upon connection and the monthly user fees associated with providing the service by IRWD, and any refund, as provided in this Agreement, shall be calculated as set forth on Exhibit "B" to this Agreement, which is attached hereto and herein incorporated by this reference. Said amounts shall be paid and /or refunded in accordance with the provisions of this Agreement, and are subject to annual non - discriminatory adjustments from time to time by IRWD. Section 5. Performance Bond - Letter of Credit. Within 30 days of the execution of this agreement by all parties, the developer or developers of the Residential Project shall post a surety bond or an irrevocable letter of credit in an amount consistent with the formula set forth in Exhibit "B ", and in a form approved by IRWD's General Counsel, guaranteeing payment of the amount due upon connection. Also, within 30 days of the execution of this Agreement, the developer or developers of the Residential Project shall post a surety bond or irrevocable letter of credit in an amount satisfactory to the City and in a form approved by the City Attorney, guaranteeing payment of the costs of construction of the Interconnection System. Section 6. Payment Due Upon Connection. The Residential Project is intended to be developed in phases based on the filing of a separate Final Tract Map for each phase, as shown on Exhibit "C ". The connection payment for all dwelling units in each Final Map shall be paid by the developer or developers of the Residential Project on a per dwelling unit basis, based on the formula set forth in Exhibit "B ", upon issuance of the first occupancy permit for each Final Tract Map and thereafter within thirty (30) days of written demand by IRWD. The Final Maps may not necessarily be filed in -5- 1 • numerical sequence. The developer or developers of the Residential Project may at its option from time to time have the amount of the bond or irrevocable letter of credit, as provided in this Agreement, reduced in proportion to the connection charges paid, but in no event shall the amount be reduced below the estimate at that time of the amount necessary to guarantee payment of the remainder of the connection amount required for the remaining Final Maps. Said connection payment shall be computed as if IRWD were providing permanent service, regardless of when it is antici- pated that the Residential Project will be served by District 5. Section 7. Refund of Connection Payment. IRWD shall refund to the developer or developers of the Residential Project the difference between any connection payment made and the cost for providing actual service, at such time as all of the Residential Project disconnects from IRWD and connects to and is served by the District 5 Facilities. IRWD shall retain any interest earned on the connection payment from time of payment until time of refund. Section 8. User Fees. In addition to the City Sewer Use Charge, all monthly operating charges or user fees for sewer service provided by IRWD shall be collected by City with the bills of City for water service based on the fee schedule set forth in Exhibit "B ". City shall deduct therefrom the reasonable, identifiable administrative costs of making such collections, not to exceed 10% of the fees collected. Said user fees minus administrative costs shall be paid to IRWD. City shall no longer be responsible for collecting said monthly operating charges for IRWD when all such charges incurred up to the time District 5 commences providing sewer service to the Residential Project have been collected. Section 9. Emergency Fail -Safe System Charges. City shall reimburse IRWD for any extra expense caused by sewer Q� spill -over from the Residential Project based on the formula shown on Exhibit "B" as applied at the time of such spill- over. Said charges shall go into effect and be applicable only after the Residential Project connects to District 5, as provided in this Agreement, and when a spill -over condition has existed for a continuous period in excess of 12 hours. Section 10. Notice of Interconnection. The developer or developers of the Residential Project shall be required to give notice to all prospective purchasers of the dwelling units located in said project, as required by law in the California Department of Real Estate Subdivision Report (White Report), of the possibility that IRWD may provide sewer service to said dwelling units and setting forth the schedule of IRWD and City monthly service charges. The developer or developers of the Residential Project shall cause to be placed in the covenants, conditions and restrictions for said project a prohibition against the use of self - regenerating water softeners, so long as the Residential Project receives sewer service from IRWD. Section 11. Unlawful Material or Substance. City agrees that it will allow only domestic sewage to be de- livered to IRWD and not any material or substance which will, directly or indirectly or in combination with any other material or substance delivered to IRWD by means of the connection to IRWD's facilities designated on Exhibit "A" to this agreement, prevent IRWD from complying with the requirements established by any regulatory agency having jurisdiction over the treatment, reuse or disposal of the effluent from the Michelson Wastewater Reclamation Plant of IRWD or other facilities of IRWD for treating and disposing of sewage from or received by IRWD. City agrees to estab- lish and exert its best efforts on a continuing basis to enforce regulations prohibiting the discharge of toxic materials to IRWD from the Residential Project. City further -7- agrees to prohibit self- regenerative water softeners in the Residential Project so long as the project receives sewer service from IRWD. In the event that such should occur contrary to the provisions of this agreement, City shall exert its best efforts to ascertain and establish that such did occur, as well as cooperate in determining responsibility for payment of any fines, penalties, engineering, accounting, administrative and legal costs, together with any resulting increased operating, maintenance, and replacement or repair costs which are incurred as a result thereof. PART II: COVENANTS BETWEEN IRWD, CITY AND DISTRICT 5 Section A. Service By IRWD - Service By District 5. District 5 is presently studying all possible alternative facilities that could be constructed in order to provide the necessary expanded sewerage service capacity to serve the Residential Project. District 5 agrees to initiate and diligently pursue to completion all reasonable efforts to design, construct and place into operation the District 5 Facility. In the event District 5 is unable for some unfore- seen reason to complete construction of the District 5 Facilities so as to receive and convey to its treatment and disposal plant the sewage and wastewater from the Residential Project, within two (2) years of the date of this Agreement, and it therefore becomes necessary for IRWD to continue to receive, treat and dispose of such sewage and wastewater from the Residential Project, District 5 and IRWD agree that IRWD will continue to provide service thereto until such time as District 5 has constructed the necessary facilities to receive and dispose of the sewage from the Residential Project. Section B. Notice. Any notice or instrument required to be given or delivered to either party to this Agreement may be given or delivered by depositing the same in the United States mail, registered or certified, postage pre- paid, addressed to: Mc s County Sanitation District No. 5 of Orange County 10844 Ellis Avenue Fountain Valley, CA 92708 Irvine Ranch Water District 4201 Campus Drive Irvine, CA 92715 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Notice of a change of address shall be delivered in the same manner as any other notice provided by this section, but shall not be deemed effective until received by the other party to this agreement. Section C.. Modification. This Agreement may not be altered in whole or in part except by modification in writing, executed by all parties to this Agreement. Section D. Activation of Sewage Lift Station. Upon completion of District 5 Facilities and at such time as District 5 is able to receive the sewage and wastewater flows from the Residential Project, City agrees to activate the sewage lift station located adjacent to the Interconnec- tion System as shown on Exhibit "A ", in order to enable District 5 to thereafter receive, treat and dispose of said sewage and wastewater. Section F. Attorneys' Fees. In the event any arbitra- tion proceeding, administrative proceeding or litigation in law or in equity, including any action for declaratory relief, is brought to enforce or interpret the provisions or performance of this agreement, the prevailing party or parties shall be entitled to an award of reasonable attor- neys' fees and all costs associated with the proceeding as determined by the court, the presiding officer, or the arbitrator authorized to make a determination of the issues, in addition to any other relief to which the prevailing party may be entitled. If either party to this Agreement becomes a party to litigation, an administrative proceeding or arbitration concerning the enforcement or interpretation of the pro- visions of this Agreement or the performance of this Agree- ment by reason of any act or omission of the other party, its agents, employees, officers, directors, or any other representative of the other party that becomes a party to that proceeding or its authorized representatives, the party that causes the other party to become involved in the pro- ceedings shall be liable to that party for reasonable attorneys' fees and all costs of the proceeding incurred by that party. The award of reasonable attorneys' fees and all costs shall be determined as provided above. In the event opposing parties have each prevailed on one or more causes of action actually contested or admitted by pleadings, discovery or prehearing documents on file, the arbitrator or presiding officer may offset such fees and costs between prevailing parties after considering the necessity of the proceeding and the importance of the issue or issues upon which each party has prevailed. Section G. Indemnity. That neither IRWD, District 5 nor City nor any officer or employee thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by the other under or in connection with any work or obligation performed under this Agreement. It is also understood and agreed that, pursuant to Government Code Section 895.4, IRWD, District 5 and City shall fully indemnify and hold each other harmless from any liability imposed for injury (as defined by Govern- ment Code Section 810.8) occurring by reason of anything done or omitted to be done by the other under or in connec- tion with any work, or obligation performed under this Agreement. -10- 1 • Section H. Termination. Failure by the developer or developers of the Residential Project to post the necessary surety bond or irrevocable letter of credit as provided in this Agreement shall result in an automatic termination of this Agreement, and the terms and conditions herein shall be of no further force and effect. IN WITNESS WHEREOF, the undersigned have set their hands as of the day and year first above written. APPROVED AS TO FORM: ALEXANDER BOWIE, A Law Corporation By Fvi APPROVED AS TO FORM: ROURKE & WOODRUFF, Attor ys at L 62 By Gene 1 Counsel APPROVED AS TO FORM: By C1W Att rney ATTEST: i I By �T City C erk IRVINE RANCH WATER DIS RICT By /M ff44, President By _ Secretary APR 141980 COUNTY SANITATION DISTRICT NO__.��5 OF ORANGE COUNTY,-CALIFORNI C���°�� By ` AGREED TO AND APPROVED AS TO CONTENT: DAO By m -11- /T W i i - r.— � f-1., H J u m •9 i -C� tAt ttl • •om ry }' •�a�\r � <t f~!i' ` � ' �` 1 � 9 � • � 9 A i y E Y . 7 '} .. l � �I t� � �+ �� � � ., I i!rL��l. i tz �xr I/�V'•t[y�%y(, i 1.. �3 3 + 7 \ \✓ /` \� 1. � 1' � ylll �. 4.' } r . k+++fffFFFiiIINNN r i, / YYYr 0 W I r )w j9 5i�. 7 t E'_t tr• ° 1 t� / ^.�. `'..!`� \• � .� % / i �• e z> d "'Yt 1e �9� Et wo ®ep.'4. •f �`� � :a � .♦ � *nom - .��t.l �� - � � E //� . ::r_ �r'� <• a� E E //S' tie ' ! ®® °� i � °' Y/ Vol f v i ® Y tz a O W , a s EXHIBIT "B" • SCHEDULE OF SEWER CONNECTION PAYMENTS AND USER FEES 1. Connection Payment The connection payment consists of two components: A. Sewer Connection Fee Component is based upon IRWD's schedule of connection fees and is currently $1,020 per sewer connection and may be adjusted periodically. The rate in effect at the time of issuance of the first occupancy permit for each Final Map shall apply to such Final Map. B. Present Value of Taxes Component for applicable facilities ities is a fixed fee of $863 per unit. The connection payment shall be payable to IRWD as provided in Section 6 of this Agreement. Connection Payment = No. of Sewer Connections x (Current Sewer Connection Fee + $863) 2. Refund of Connection Payment A refund of the Connection Payment shall be made to the developer when the Residential Project connects to and is served by the District 5 Facilities. The IRWD average bond life is 20 years or 240 months; therefore, the refund shall be equal to the total connection payment divided by 240 months, multiplied by the average number of months each sewer connection receives service from IRWD, subtracted from the total connection payment. Refund = Total Connect. Pmt. - Total Connect. Pmt. x Avg. Connect. Mos. 240 Mos. 3. User Fees User Fees referenced in Section 8 of the Agreement shall include those fees included in The Rules and Regulations of Irvine Ranch Water District, Schedule of Rates and Charges (Exhibit B) in effect during the delivery of the wastewater from the Residential Project to IRWD, as well as the City Sewer Use Charge. The current IRWD rate is $9.20 per single - family DU per month and may be adjusted periodically. The City Sewer Use Charge is currently $1.50 per single - family DU per month and may be adjusted periodically. EXHIBIT "B" - Page 1 of 2 S • 4. Emergency Fail -Safe System Charge The Emergency Fail -Safe System Charge shall be a daily charge consisting of three components: A. Service Charge Component is the effective IRWD User Fee times the number of sewer connections, divided by the average days per month (30.42). Service Charge Component = Current User Fee x No. of sewer connections 30.42 days/mo. B. Capital Facility and Interest Component is the effective IRWD Connection Fee time— s the number of sewer connections divided by the average IRWD bond life (240 months) divided by the average days per month (30.42) times the capital recovery factor for the average bond interest rate. The interest rate shall be the effective Bond Buyers Index for a bond life of 20 years. For example, an interest rate of 8% yields a capital recovery factor of 2.037: Capital Facility and Interest Component = Current sewer connection fee x number of sewer connections x the capital r ecovery factor 240 mos. x 30.42 days/mo. C. Present Value of Taxes Component for applicable facilities is $863 times the number of sewer connections, divided by the average IRWD bond life (240 months) divided by the average days per month (30.42). Present Value of Taxes Component = $863 x number of sewer connections 240 mos. x 30.42 days/mo. In summary: Emergency Fail -Safe System Charges = (A) Service Charge Component (B) Capital Facility and Interest Component (C) Present Value of Taxes Component EXHIBIT "B" - Page 2 of 2 1 - si • • �� 1AV " f,/ IhW •air t. 1 a�1� Oil AT LIM It c i= } O ca W w Q By the Ci Y COUNCIL U, TY QF t4W" ' BRACH CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER April 14, 1980 TO: MAYOR AND CITY COUNCIL FROM: City Manager 5 COUNCIL AGENDA ITEM NOH -2 f SUBJECT: AGREEMENT BETWEEN IRWD - SANITATION DISTRICT NO. 5 - CITY OF NEWPORT BEACH FOR INTERIM SEWER SERVICE On August 27, 1979, the City Council approved Tentative Map of Tract 10391 which, among other things, allows a 300 -unit residential dwell- ing development on the Ford - Aeronutronic site. The project is to be de- veloped by the Daon Corporation. In January of this year, Sanitation District Board No. 5 adopted an urgency ordinance temporarily suspending the issuance of sewer connection permits for projects such as the Daon development which are tributary to the Jamboree Road -Big Canyon drainage area. Sanitation District No. 5 is currently reviewing means to increase sewer capacity in the area by con- struction of a new pump station or installation of a gravity line in Back Bay Drive. Daon wishes to proceed with the grading of the site this summer, but is reluctant to commence construction without having some assurance that there will be adequate sewer capacity to serve the project when it is ready for occupancy. In order to provide this assurance, the Daon Corporation is pro- posing a temporary interconnection to an existing IRWD sewer facility ad- jacent to and just north of the subject property. An agreement between Sanitation District No. 5, IRWD and the City of Newport Beach has been pre- pared, which provides for this temporary interconnection. The agreement has been approved in concept by both Sanitation District No. 5 and IRWD. Under the terms of the agreement, the City of Newport Beach would be responsible for collecting the IRWD monthly sewer service charge. As administrative costs, the City will deduct and retain an amount up to 10% of the fees collected. The agreement has been reviewed by the City Attorney, the Utilities Director, the Public Works Director, and the Finance Director, and they favor the arrangement. It is possible that the new District 5 sewer facilities will have been constructed by the time the project is ready for occupancy, and if so, it will not be necessary to con- nect to IRWD except in an emergency overflow situation. It is recommended that the City Council adopt a resolution authoriz- ing the Mayor and City Clerk to execute the agreement. RLW:mn ROBERT L. WY NN D40N SOUTHWEST A division of Doon Corporation 4041 MacARTHUR BOULEVARD POST OFFICE BOX 2770 NEWPORT BEACH, CALIFORNIA 92660 TELEPHONE (714) 752 -7855 BY the CITY COUNCIL '.'!T QP sri H d- . 4) r April 3, 1980 5 ent" !! ' PR'/.Qy1r�� The Honorable Mayor and 01 Members of the City Council tl y pp 8�i► City of Newport Beach 0 ra�9C 3300 Newport Boulevardl�F Newport Beach, California 92663 Gentlemen: On August 27, 1979, the City Council approved Tentative Map of Tract 10391, permitting development of 300 residential dwelling units on the Ford - Aeronutronic site. The project is located within the Sanitation District No. 5, Jamboree Road -Big Canyon drainage area. On January 15, 1980, Sanita- tion District Board No. 5 adopted Ordinance No. 510 as an urgency measure, temporarily suspending issuance of sewer connection permits for projects within that drainage area, because the existing facilities had reached their capacity. In the spirit of cooperation and in order to assist the District with the funding for new sewer facilities, Daon Corporation on February 27, 1980, entered into an agreement with the District guaranteeing to advance the sum of $400,000. The Daon- District 5 agreement, as well as Ordinance No. 510, provided a means whereby Daon, and other property owners located within the Jamboree Road -Big Canyon drainage area, could connect to alternate facilities on a temporary basis should District 5 be unable to service their projects at the time of commencing development. On March 12, 1980, the Sanitation District Board No. 5 adopted Resolution No. 80 -58 -5 approving interim sewer service for the Daon residential project by means of an interconnection with an existing IRWD facility located adjacent to the northern boundary of the Ford - Aeronutronic site. On March 24, 1980, the Irvine Ranch Water District Board of Directors approved the interconnection in concept. It appears unlikely that Sanitation District No. 5 will have the new sewer facilities constructed by the time Daon 0 City of Newport Beach -2- April 3, 1980 proposes to obtain grading permits in order to grade the site during the upcoming summer months.. In the event the new District 5 facilities are not on line when the first residential units are ready for occupancy, Daon understand- ably wishes to have the assurance of and ability to provide an alternate means of disposing of the sewage from the project pending completion of the new District 5 sewer facilities. We have prepared and are submitting to the Council for approval an agreement which generally provides for that assurance. Pursuant to the agreement, Daon is obligated to pay all costs associated with the construction of the inter- connection. The interconnection is intended to also provide a fail -safe system in the future in the event there should be a malfunction and spill -over in the District 5 trunk sewer. The City of Newport Beach is being requested to collect the monthly sewer service charges with the City water bills and forward those fees to IRWD, after deducting an amount up to 10% of the fees as administrative costs. Hopefully, by the time the residential units are ready for occupancy, which we estimate to be at least two more years, the new District 5 facilities will have been con- structed and operational. Accordingly, the interconnection as provided in the agreement will not be necessary, other than to provide the aforementioned fail -safe system. How- ever, we are respectfully asking for your approval of this agreement now so that we can proceed with the planning and construction of our project. Very truly yours, �YUy'L�i% v'1 Warren A. Colton III Senior Vice President WAC: DO: mh cc: Michael K. Ryan, Project Manager THIS AGREEMENT, for purposes of identification, is hereby dated and effective the day of 1980, and is BY AND BETWEEN .Z 7 AND IRVINE RANCH WATER DISTRICT, a California Water District (hereinafter "IRWD ") COUNTY SANITATION DISTRICT NO. 5 OF ORANGE COUNTY, CALIFORNIA (hereinafter referred to as "District 5 ") CITY OF NEWPORT BEACH, a Charter City (hereinafter referred to as "City ") . RECITALS WHEREAS, this agreement is intended by the parties to allow for an interim service and emergency interconnection of facilities by means of an existing IRWD gravity sewer pending construction of either a District 5 Jamboree Road Pump Station and Force Main or the Back Bay Drive gravity line (hereinafter "District 5 Facilities ") and for permanent service only in the event District 5 is unable to construct such District 5 Facilities, thereby providing service to the Residential Project as hereinafter defined; and WHEREAS, the City has approved Tentative Map of Tract 10391 permitting development of 300 residential units and ancillary facilities, not to exceed ten additional dwelling unit equivalents, on approximately 100 acres of land, generally known as the Ford Aeronutronic site (hereinafter "the Residential 040780 -14 mh o APR 14 AGREEMENT FOR INTERCONNECTION OF By the CITY COUNCIL CITY Go FACILITIES AND INTERIM SEWER SERVICE THIS AGREEMENT, for purposes of identification, is hereby dated and effective the day of 1980, and is BY AND BETWEEN .Z 7 AND IRVINE RANCH WATER DISTRICT, a California Water District (hereinafter "IRWD ") COUNTY SANITATION DISTRICT NO. 5 OF ORANGE COUNTY, CALIFORNIA (hereinafter referred to as "District 5 ") CITY OF NEWPORT BEACH, a Charter City (hereinafter referred to as "City ") . RECITALS WHEREAS, this agreement is intended by the parties to allow for an interim service and emergency interconnection of facilities by means of an existing IRWD gravity sewer pending construction of either a District 5 Jamboree Road Pump Station and Force Main or the Back Bay Drive gravity line (hereinafter "District 5 Facilities ") and for permanent service only in the event District 5 is unable to construct such District 5 Facilities, thereby providing service to the Residential Project as hereinafter defined; and WHEREAS, the City has approved Tentative Map of Tract 10391 permitting development of 300 residential units and ancillary facilities, not to exceed ten additional dwelling unit equivalents, on approximately 100 acres of land, generally known as the Ford Aeronutronic site (hereinafter "the Residential 40 so Project "), more specifically designated in the attached drawing marked Exhibit "A" and made a part herein by this reference; and WHEREAS, the Residential Project is planned to be developed in phases based on filing separate Final Tract Maps as generally depicted on Exhibit "C" attached hereto and made a part herein by this reference; and WHEREAS, Residential Project is located tributary to the proposed District 5 Facilities within the boundaries of District 5 and is uniquely situated adjacent to an existing IRWD gravity sewer thereby facilitating an interconnection for both an interim sewer service system and a permanent emergency failsafe overflow system as depicted on Exhibit "A" to this Agreement; and WHEREAS, District 5 is in the planning process for the construction and installation of the District 5 Facilities to receive and dispose of the sewage and wastewater antici- pated to be generated from the Residential Project; and WHEREAS, District 5 has adopted Ordinance No. 510, which among other things permits interim or alternative facilities or methods of disposing of the Residential Pro- ject wastewater upon a finding that District 5 reasonably expects to have permanent additional facilities available to serve the Project in a known period of time; and WHEREAS, on March 12, 1980, District 5 adopted Resolu- tion No. 80 -58 -5 approving interim sewer service to Tentative Tract No. 10391 by an interconnection to IRWD upon a finding that District 5 expects to have permanent additional facilities available to serve the Residential Project within approximately two years; and WHEREAS, the County Sanitation Districts of Orange County, including District 5, City and IRWD, heretofore have entered into agreements from time to time to receive, treat and dispose of sewage from various areas located within the -2- M N County Sanitation Districts of Orange County, including District 5, in order to avoid unnecessary expenditure of public funds and duplication of facilities, to minimize operation and maintenance cost, and to provide for temporary and /or emergency interconnection so as to avoid occurrence of instances where sewage is not capable of being disposed of in a manner consistent with the public health, safety and welfare; and WHEREAS, IRWD, City and District 5 have found and determined that the herein proposed interconnection facilities will provide: (i) a temporary interim interconnection; (ii) a permanent emergency interconnection; and if necessary (iii) a permanent interconnection. The proposed interconnec- tion facilities would connect to an existing IRWD line located to the north and adjacent to the Residential Project and would be in the best interests of City and the respective districts; and WHEREAS, the parties believe that the formulae set forth herein for calculating the payment due upon connection of the Residential Project to IRWD's facilities, refund upon connection to District 5, user fees, and emergency fail -safe system charge are a reasonably precise and fair method of calculating said amounts; and WHEREAS, City recognizes that construction of the Interconnection System will provide a means of disposing of sewage and wastewater from the Residential Project and agrees to issue building permits for said Residential Project based on sewer service being provided by said Interconnection System pursuant to the terms and conditions of this Agreement, and at such time as plans have been checked and building permit fees are paid. NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth in'Part I between IRWD and City, and in Part II between IRWD, City and District 5, the parties hereto agree as follows: -3- L so PART I: COVENANTS BETWEEN IRWD AND CITY Section 1. Interconnection of Facilities. It is agreed by IRWD and City that an interconnection between the sewage and wastewater facilities of IRWD and City as de- picted on Exhibit "A" to this Agreement (hereinafter re- ferred to as the "Interconnection System "), shall be estab- lished consistent with the requirements of the IRWD and sound utility management principles to provide an emergency and interim and, if necessary, permanent means of receiving, treating and disposing of the sewage and wastewater from the Residential Project and ancillary facilities to be con- structed according to Tentative Map of Tract 10391 of City. Section 2. Interconnection Construction Costs. It is understood that all costs associated with the construction of the Interconnection System, including but not limited to the preparation of the plans, specifications and contract documents, engineering and legal costs associated therewith, preparation of any required environmental documentation, review and approval of plans and specifications and on -site inspections by IRWD and City, and all costs for labor and materials, shall be borne by the developer or developers of the Residential Project. Section 3. Ownership, Operation and Maintenance. Upon completion of construction and acceptance by IRWD of the Interconnection System, title to said facilities shall vest in IRWD as depicted on Exhibit "A" to this Agreement. All other facilities for the residential project, inclusive, but not by way of limitation, of those depicted on Exhibit "A ", shall be owned, operated and maintained by the City. IRWD shall own and be responsible for only the operation and maintenance of the Interconnection System. In the event District 5 cannot provide permanent service as herein con- templated, all the ownership of the herein described facili- ties, as well as the obligation of operation and maintenance, shall remain unchanged so long as this Agreement remains in -4- M effect. Section 4. Payment Due Upon Connection, Fees and Refund. The payment due upon connection and the monthly user fees associated with providing the service by IRWD, and any refund, as provided in this Agreement, shall be calculated as set forth on Exhibit "B" to this Agreement, which is attached hereto and herein incorporated by this reference. Said amounts shall be paid and /or refunded in accordance with the provisions of this Agreement, and are subject to annual non - discriminatory adjustments from time to time by IRWD. Section 5. Performance Bond - Letter of Credit. Within 30 days of the execution of this agreement by all parties, the developer or developers of the Residential Project shall post a surety bond or an irrevocable letter of credit in an amount consistent with the formula set forth in Exhibit "B ", and in a form approved by IRWD's General Counsel, guaranteeing payment of the amount due upon connection. Also, within 30 days of the execution of this Agreement, the developer or developers of the Residential Project shall post a surety bond or irrevocable letter of credit in an amount satisfactory to the City and in a form approved by the City Attorney, guaranteeing payment of the costs of construction of the Interconnection System. Section 6. Payment Due Upon Connection. The Residential Project is intended to be developed in phases based on the filing of a separate Final Tract Map for each phase, as shown on Exhibit "C ". The connection payment for all dwelling units in each Final Map shall be paid by the developer or developers of the Residential Project on a per dwelling unit basis, based on the formula set forth in Exhibit "B ", upon issuance of the first occupancy permit for each Final Tract Map and thereafter within thirty (30) days of written demand by IRWD. The Final Maps may not necessarily be filed in -5- 40 M numerical sequence. The developer or developers of the Residential Project may at its option from time to time have the amount of the bond or irrevocable letter of credit, as provided in this Agreement, reduced in proportion to the connection charges paid, but in no event shall the amount be reduced below the estimate at that time of the amount necessary to guarantee payment of the remainder of the connection amount required for the remaining Final Maps. Said connection payment shall be computed as if IRWD were providing permanent service, regardless of when it is antici- pated that the Residential Project will be served by District 5. Section 7. Refund of Connection Payment. IRWD shall refund to the developer or developers of the Residential Project the difference between any connection payment made and the cost for providing actual service, at such time as all of the Residential Project disconnects from IRWD and connects to and is served by the District 5 Facilities. IRWD shall retain any interest earned on the connection payment from time of payment until time of refund. Section 8. User Fees. In addition to the City Sewer Use Charge, all monthly operating charges or user fees for sewer service provided by IRWD shall be collected by City with the bills of City for water service based on the fee schedule set forth in Exhibit "B ". City shall deduct therefrom the reasonable, identifiable administrative costs of making such collections, not to exceed 10% of the fees collected. Said user fees minus administrative costs shall be paid to IRWD. City shall no longer be responsible for collecting said monthly operating charges for IRWD when all such charges incurred up to the time District 5 commences providing sewer service to the Residential Project have been collected. Section 9. Emergency Fail -Safe System Charges. City shall reimburse IRWD for any extra expense caused by sewer Win N M spill -over from the Residential Project based on the formula shown on Exhibit "B" as applied at the time of such spill- over. Said charges shall go into effect and be applicable only after the Residential Project connects to District 5, as provided in this Agreement, and when a spill -over condition has existed for a continuous period in excess of 12 hours. Section 10. Notice of Interconnection. The developer or developers of the Residential Project shall be required to give notice to all prospective purchasers of the dwelling units located in said project, as required by law in the California Department of Real Estate Subdivision Report (White Report), of the possibility that IRWD may provide sewer service to said dwelling units and setting forth the schedule of IRWD and City monthly service charges. The developer or developers of the Residential Project shall cause to be placed in the covenants, conditions and restrictions for said project a prohibition against the use of self - regenerating water softeners, so long as the Residential Project receives sewer service from IRWD. Section 11. Unlawful Material or Substance. City agrees that it will allow only domestic sewage to be de- livered to IRWD and not any material or substance which will, directly or indirectly or in combination with any other material or substance delivered to IRWD by means of the connection to IRWD's facilities designated on Exhibit "A" to this agreement, prevent IRWD from complying with the requirements established by any regulatory agency having jurisdiction over the treatment, reuse or disposal of the effluent from the Michelson Wastewater Reclamation Plant of IRWD or other facilities of IRWD for treating and disposing of sewage from or received by IRWD. City agrees to estab- lish and exert its best efforts on a continuing basis to enforce regulations prohibiting the discharge of toxic materials to IRWD from the Residential Project. City further -7- M 40 agrees to prohibit self- regenerative water softeners in the Residential Project so long as the project receives sewer service from IRWD. In the event that such should occur contrary to the provisions of this agreement, City shall exert its best efforts to ascertain and establish that such did occur, as well as cooperate in determining responsibility for payment of any fines, penalties, engineering, accounting, administrative and legal costs, together with any resulting increased operating, maintenance, and replacement or repair costs which are incurred as a result thereof. PART II: COVENANTS BETWEEN IRWD, CITY AND DISTRICT 5 Section A. Service By IRWD - Service By District 5. District 5 is presently studying all possible alternative facilities that could be constructed in order to provide the necessary expanded sewerage service capacity to serve the Residential Project. District 5 agrees to initiate and diligently pursue to completion all reasonable efforts to design, construct and place into operation the District 5 Facility. In the event District 5 is unable for some unfore- seen reason to complete construction of the District 5 Facilities so as to receive and convey to its treatment and disposal plant the sewage and wastewater from the Residential Project, within two (2) years of the date of this Agreement, and it therefore becomes necessary for IRWD to continue to receive, treat and dispose of such sewage and wastewater from the Residential Project, District 5 and IRWD agree that IRWD will continue to provide service thereto until such time as District 5 has constructed the necessary facilities to receive and dispose of the sewage from the Residential Project. Section B. Notice. Any notice or instrument required to be given or delivered to either party to this Agreement may be given or delivered by depositing the same in the United States mail, registered or certified, postage pre- paid, addressed to: am J 11 N N County Sanitation District No. 5 of Orange County 10844 Ellis Avenue Fountain Valley, CA 92708 Irvine Ranch Water District 4201 Campus Drive Irvine, CA 92715 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Notice of a change of address shall be delivered in the same manner as any other notice provided by this section, but shall not be deemed effective until received by the other party to this agreement. Section C. Modification. This Agreement may not be altered in whole or in part except by modification in writing, executed by all parties to this Agreement. Section D. Activation of Sewage Lift Station. Upon completion of District 5 Facilities and at such time as District 5 is able to receive the sewage and wastewater flows from the Residential Project, City agrees to activate the sewage lift station located adjacent to the Interconnec- tion System as shown on Exhibit "A ", in order to enable District 5 to thereafter receive, treat and dispose of said sewage and wastewater. Section F. Attorneys' Fees. In the event any arbitra- tion proceeding, administrative proceeding or litigation in law or in equity, including any action for declaratory relief, is brought to enforce or interpret the provisions or performance of this agreement, the prevailing party or parties shall be entitled to an award of reasonable attor- neys' fees and all costs associated with the proceeding as determined by the court, the presiding officer, or the arbitrator authorized to make a determination of the issues, in addition to any other relief to which the prevailing ME 40 IF party may be entitled. If either party to this Agreement becomes a party to litigation, an administrative proceeding or arbitration concerning the enforcement or interpretation of the pro- visions of this Agreement or the performance of this Agree- ment by reason of any act or omission of the other party, its agents, employees, officers, directors, or any other representative of the other party that becomes a party to that proceeding or its authorized representatives, the party that causes the other party to become involved in the pro- ceedings shall be liable to that party for reasonable attorneys' fees and all costs of the proceeding incurred by that party. The award of reasonable attorneys' fees and all costs shall be determined as provided above. In the event opposing parties have each prevailed on one or more causes of action actually contested or admitted by pleadings, discovery or prehearing documents on file, the arbitrator or presiding officer may offset such fees and costs between prevailing parties after considering the necessity of the proceeding and the importance of the issue or issues upon which each party has prevailed. Section G. Indemnity. That neither IRWD, District 5 nor City nor any officer or employee thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by the other under or in connection with any work or obligation performed under this Agreement. It is also understood and agreed that, pursuant to Government Code Section 895.4, IRWD, District 5 and City shall fully indemnify and hold each other harmless from any liability imposed for injury (as defined by Govern- ment Code Section 810.8) occurring by reason of anything done or omitted to be done by the other under or in connec- tion with any work, or obligation performed under this Agreement. -10- N N party may be entitled. If either party to this Agreement becomes a party to litigation, an administrative proceeding or arbitration concerning the enforcement or interpretation of the pro- visions of this Agreement or the performance of this Agree- ment by reason of any act or omission of the other party, its agents, employees, officers, directors, or any other representative of the other party that becomes a party to that proceeding or its authorized representatives, the arty that causes the o�her party to become involved in t pro- ceedings shall be fable to that party for reason le attorneys' fees and all costs of the proceeding "`incurred by that party. The awa d of reasonable attorneys' fees and all costs shall be determined as provided ab7e. In the event opposing parties have each prevailed on 'one or more causes of action actually contested or admitted by pleadings, discovery or prehearing documents pi file, the arbitrator or presiding officer may offset'.sucpf fees and costs between prevailing parties after considering the necessity of the proceeding and the importance of the issue or issues upon which each party has prevailed. Section G. Indemni'y. That`,neither IRWD, District 5 nor City nor any officer or employee thereof, shall be responsible for any Aamage or liability occurring by reason of anything done o omitted to be done by the other under or in connection with any work, authority or jurisdiction not delegated o IRWD, District 5 or City under this Agree- ment. It is also understood and agreed that, pursuant to Government ode Section 895.4, IRWD, District 5 and City shall ful y indemnify and hold each other harmless from any liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by the other under or in connection with any work, authority or jurisdiction not delegated to IRWD, District 5 or City under this Agreement. -10- M Section H. Termination. Failure by the developer or developers of the Residential Project to post the necessary surety bond or irrevocable letter of credit as provided in this Agreement shall result in an automatic termination of this Agreement, and the terms and conditions herein shall be of no further force and effect. IN WITNESS WHEREOF, the undersigned have set their hands as of the day and year first above written. IRVINE RANCH WATER DISTRICT APPROVED AS TO FORM: ALEXANDER BOWIE, By A Law Corporation By By APPROVED AS TO FORM: ROURKE & WOODRUFF, Attorneys at Law M APPROVED AS TO FORM: Ur I City Attorney ATTEST: By City Clerk COUNTY SANITATION DISTRICT NO. 5 OF ORANGE COUNTY, CALIFORNIA S OR CITY OF NEWPORT BEACH 0 Mayor AGREED TO AND APPROVED AS TO CONTENT: DAON CORPORATION o M -11- W 2 i t C.~ OCQ W s gg r Z 1 '' ®" ,,.y [ -. • o m 0 � a .r.et tom`- - 11 �, f 0[ / � � ��• E • , a • \ ! Y �.. r., i -�) t: \;, �Kts,CC�����v` �. 4i '1 - \, 0[. pia a �[ 4 [ a EP 1 a r �, �•�1 .!•_ -'21�. -.\ '(` •,`�, ly qr Ji tz 11 ' Sp a 6` 1 . •F i � � � `, � d D B' I�y. I,' -1� ' m � z -�. ° o • ®c wP ' `'oR } —' iii it y. .a a :r:} ' -t t:if• �, [ [ S F OB 5 f ®s �� [, - f! �/' t = O W O { \ � •_ � tp We 40 EXHIBIT "B" SCHEDULE OF SEWER CONNECTION PAYMENTS AND USER FEES 1. Connection Payment The connection payment consists of two components: A. Sewer Connection Fee Component is based upon IRWD's schedule of connection fees and is currently $1,020 per sewer connection and may be adjusted periodically. The rate in effect at the time of issuance of the first occupancy permit for each Final Map shall apply to such Final Map. B. Present Value of Taxes Component for applicable facilities is a fixed fee of $863 per unit. The connection payment shall be payable to IRWD as provided in Section 6 of this Agreement. Connection Payment = No. of Sewer Connections x (Current Sewer Connection Fee + $863) 2. Refund of Connection Payment A refund of the Connection Payment shall be made to the developer when the Residential Project connects to and is served by the District 5 Facilities. The IRWD average bond life is 20 years or 240 months; therefore, the refund shall be equal to the total connection payment divided by 240 months, multiplied by the average number of months each sewer connection receives service from IRWD, subtracted from the total connection charges. Refund = Total Connection Payment x Avg. Connection Mos. 240 Mos. 3. User Fees User Fees referenced in Section 8 of the Agreement shall include those fees included in The Rules and Regulations of Irvine Ranch Water District, Schedule of Rates and Charges (Exhibit B) in effect during the delivery of the wastewater from the Residential Project to IRWD, as well as the City Sewer Use Charge. The current IRWD rate is $9.20 per single - family DU per month and may be adjusted periodically. The City Sewer Use Charge is currently $1.50 per single - family DU per month and may be adjusted periodically. EXHIBIT "B" - Page 1 of 2 4. N M Emergency Fail -Safe System Charge The Emergency Fail -Safe System Charge shall be a daily charge consisting of three components: A. Service Charge Component is the effective IRWD User Fee times the number of sewer connections, divided by the average days per month (30.42). Service Charge Component = Current User Fee x No. of sewer connections 30.42 days/mo. B. Capital Facility and Interest Component is the effective IRWD Connection Fee times the number of sewer connections divided by the average IRWD bond life (240 months) divided by the average days per month (30.42) times the capital recovery factor for the average bond interest rate. The interest rate shall be the effective Bond Buyers Index for a bond life of 20 years. For example, an interest rate of 8% yields a capital recovery factor of 2.037: Capital Facility and Interest Component = Current sewer connection fee x number of sewer connections x the capital recovery factor 240 mos. x 30.42 days/mo. C. Present Value of Taxes Component for applicable facilities is $863 times the number of sewer connections, divided by the average IRWD bond life (240 months) divided by the average days per month (30.42). Present Value of Taxes Component = $863 x number of sewer connections 240 mos. x 30.42 days/mo. In summary: Emergency Fail -Safe System Charges = (A) Service Charge Component (B) Capital Facility and Interest Component (C) Present Value of Taxes Component EXHIBIT "B" - Page 2 of 2 F i. IL LL CA. 4) cc LU Illy the � Cil"'/�ShctT YCI�pCFI RESOLUTION NO. 261Q A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE IRVINE RANCH WATER DISTRICT, COUNTY SANITATION DISTRICT NO. 5 AND THE CITY OF NEWPORT BEACH FOR INTERCONNECTION OF FACILITIES AND INTERIM SEWER SERVICE WHEREAS, there has been presented to the City Council of the City of Newport Beach a certain agreement between the Irvine Ranch Water District, County Sanitation District No. 5 and the City of Newport Beach for interconnec- tion of facilities and interim sewer service; and WHEREAS, the City Council has reviewed the terms and conditions of said agreement and finds them to be satis- factory and that it would be in the best interest of the City to execute said agreement, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that the agreement above described is approved, and the Mayor and City Clerk are hereby authorized and directed to execute the same on behalf of the City of Newport Beach. ADOPTED this 14th day of April Mayor ATTEST: City Clerk 1980. kv 4/7/80