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Home My WebLink AboutC-3400(A) - MOU Regarding Operating Criteria for San Joaquin Reclaimed Water Storage Reservoir. MEMORANDUM OF UNDERSTANDING REGARDING OPERATING CRITERIA FOR SAN JOAQUIN RECLAIMED WATER STORAGE RESERVOIR This Memorandum of Understanding ( "MOU ") is made and entered into this � day of by and between the IRVINE RANCH WATER DISTRICT ( "IRWD ") and the CITY OF NEWPORT BEACH (the "City "). WITNESSETH: WHEREAS, IRWD and the City, along with other parties, as owners of interests in the San Joaquin Reservoir ( "Reservoir"), have entered into, or intend to enter into subject to execution by any of the parties thereto which have not yet signed, an agreement providing for the sale to IRWD by such owners of all of their respective undivided ownership and capacity interests and all of their rights, title and interest in and to the Reservoir ( "Sale Agreement"); and WHEREAS, IRWD has approved a project for the conversion of the Reservoir to reclaimed water storage and in conjunction with such approval, has prepared and certified a mitigated negative declaration and adopted a mitigation and monitoring program pursuant to the California Environmental Quality Act (CEQA) (collectively, the "CEQA Documents "); and WHEREAS, the Reservoir will be designed for seasonal storage of up to 2,500 acre feet of non- potable water, including reclaimed water produced by IRWD at its Michelson Wastewater Reclamation Plant in accordance with State of California requirements, specified in Title 22 of the Code of Administrative Regulations, for tertiary treated reclaimed water ( "reclaimed water"); and WHEREAS, City and IRWD desire to further clarify the intended manner and timing of implementation of certain design and operational features referred to in the CEQA documents, with the 0 0 goal of assuring optimum operation, avoiding complaints by surrounding residents and providing prompt attention and resolution of any complaints that might occur. NOW, THEREFORE, in consideration of the circumstances as recited above and mutual covenants and conditions set forth herein, the parties to this MOU do hereby set forth their mutual understanding as follows: Design and Operation of the Reservoir. IRWD agrees and confirms that pursuant to the CEQA Documents, it will: a. Install an aeration system in the Reservoir, to maintain dissolved oxygen levels within the stored water as described in the CEQA Documents; b. Install a downstream collection system at the toe of the Reservoir dam, to collect Reservoir subdrainage flow. Reservoir subdrainage flow consists of subdrainage from the Reservoir and drainage from adjacent properties ( "subdrainage "). . C. Retain a qualified biologist to monitor the condition of downstream riparian habitat, and determine and make appropriate subdrainage flow releases to preserve such habitat; d. Operate a water disbursement system in the Reservoir to ensure appropriate Reservoir mixing and turnover; e. Monitor the Reservoir for algae, odors, and other undesirable conditions consistent with the CEQA Documents, and coordinate with the CITY on the implementation of remedial actions; f. Observe California Division of Safety of Dams (DSOD) drawdown criteria and maintain a minimum pool elevation of 400 feet; g. Maintain an information telephone number for homeowners to inform IRWD of any concerns about the Reservoir operation; h. Not release reclaimed water stored in the Reservoir, other than into the IRWD reclaimed water system, except in the case of an emergency affecting life or property. 2. City Cooperation. The City agrees that concurrently with execution of this MOU, it will execute and deliver the Sale Agreement to IRWD in substantially the form of the draft existing on the date hereof. The City further agrees that it will publicly support the necessity of using the Reservoir to maximize the benefit of seasonal and operational storage of reclaimed water, which will include, without -2- 0 0 limitation, annual fill and drawdown, periodic draining of the Reservoir for cleaning, and storage and utilization of chlorine, subject to and pursuant to the CEQA Documents. This MOU does not restrict or limit the right of the City to comment on, challenge in any manner, or otherwise oppose any future modification to IRWD's reclaimed water system, including, without limitation, any modification to or expansion of the Michelson Water Reclamation Plant. 3. Remedies. (a) IRWD will meet and confer with adjacent interested homeowners annually for the first five (5) years of operation of the Reservoir to verify compliance with the CEQA Documents and the foregoing requirements and address any issues. (b) IRWD will also meet and confer with the City annually if the City so requests, to verify compliance with the CEQA Documents and the foregoing requirements and address any issues. The parties agree to exert their best efforts to reach a good -faith resolution as to the appropriate manner of remedying any asserted noncompliance or issue. As part of the meet and confer process, the parties will consider retaining a mutually acceptable third party expert to render factual findings, opinions and /or recommendations as requested. Should the meet and confer process be unsuccessful, the parties retain all rights at law or in equity with reference to such noncompliance or issue. (c) The parties agree that City has no adequate remedy at law for the breach of the obligations set forth in Sections 1(a) and 1(f) hereof, and that City shall be entitled to specific performance thereof except as prohibited by law. (d) The parties agree that each of the design and operational requirements identified in this Memorandum of Understanding are obligations of the District irrespective of the decision in the litigation entitled "DEFEND THE BAY v IRVINE RANCH WATER DISTRICT, et al. (filed with the Superior Court of California, County of Orange, Central Justice System, on January 17, 2001 and bearing Case No. 01CC01034). 4. Counterparts. This MOU may be executed in one or more counterparts. Each will be deemed an original and all, taken together, will constitute one and the same instrument. -3- 0 0 5. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be validly given or made only if in writing and delivered in person or seventy-two (72) hours after deposit in the United States mail, duly certified or registered (return receipt requested), postage prepaid, and delivered (in the case of personal delivery) or addressed (in the case of mail delivery) to the party for whom intended, as follows: If to IRWD: IRVINE RANCH WATER DISTRICT 15600 Sand Canyon Avenue P.O. Box 57000 Irvine, CA 92619 -7000 Attention: General Manager If to the City: CITY OF NEWPORT BEACH 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92659 -1768 Attention: City Manager Either party may substitute a different address for its above - stated address by giving written notice to the other in the manner herein provided. 6. Effective Date. The effectiveness of this MOU shall be subject to the execution and delivery of the Sale Agreement by all parties thereto. The effective date of the MOU shall be the dated date of the Sale Agreement. Entire Agreement. This MOU constitutes the entire agreement between the parties concerning the subject matter hereof. All prior agreements, representations, negotiations and understandings of the parties are superseded and merged in this MOU. This MOU shall be amended only in writing executed by both parties. 8. No Third Party Beneficiaries. Nothing in this MOU is intended or shall be construed to give any person, other than the parties and their respective successors and assigns, any legal or 10 equitable right, remedy or claim under or in respect of this MOU or any provision hereof, this MOU and each condition and provision hereof being intended to be for the sole and exclusive benefit of the parties and their respective successors and assigns, and for the benefit of no other person. 9. No Waiver. This MOU does not constitute a waiver of any right in law or equity related to the sale or transfer of the City's interests in the Reservoir and any related property or improvements or the termination of the San Joaquin Reservoir Trust Agreement. IN WITNESS WHEREOF, the parties hereto have executed this MOU the day and year first written above. APPR WED AS TO FORM: Robert Burnham, City Attorney -5- CITY OF NEWPORT BEACH By A. Garold Adams, Mayor LaVonne Harkless, City Clerk (SEAL) IRVINE RANCH WATER DISTRICT Marry Aileen Matheis, President By. Leslie Bonkowski, Secretary APPROVED AS TO FORM: (SEAL) C. Arneson, Counsel for IRWD -6-