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HomeMy WebLinkAboutC-5021 - Cooperative Agreement for the Irrigation Runoff Reduction ProgramCOOPERATIVE AGREEMENT (� BETWEEN CITY OF NEWPORT BEACH AND IRVINE RANCH WATER DISTRICT FOR THE 1 IRRIGATION RUNOFF REDUCTION PROGRAM This Cooperative Agreement ( "Agreement') is entered into the qtw day of PU&flWN" 2011, ( "Effective Date ") by and between the City of Newport Beach, a municipal corporation in the State of California (the "City "), and Irvine Ranch Water District, a California water district existing pursuant to Section 34000 et seq. of the California Water Code ( "IRWID "), which are sometimes individually referred to as "Party" or collectively referred to as "Parties." WHEREAS, The State Water Resources Control Board (State Water Board) and the City entered into Agreement No. 10- 414 -550, effective April 1, 2011 for the City to receive funds from the Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006 (Proposition 84) Clean Beaches Program for the eligible project costs of the Newport Coast Areas of Special Biological Significance (ASBS) Protection Implementation Program (the "Program "), a program designed to comply with the discharge prohibition into ASBS contained in the California Ocean Plan (Prop 84 Grant); WHEREAS, A portion of these funds are proposed to be used for funding an irrigation runoff reduction project ( "Project') for the Newport Coast Watershed that drains to ASBS Nos. 32 and 33 and includes water service areas of the City and IRWD; WHEREAS, The City and IRWD collaborated successfully on a similar program in 2006 that installed over 500 Smartimer Irrigation Controllers at residential properties in Newport Coast; NOW, THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: ARTICLE 1. ELEMENTS OF AGREEMENT The Parties will work cooperatively together to complete the Project in a manner that will minimize costs and meet the requirements of the Prop 84 Grant with the State Water Board. Proposition 84 Program funds expended for the Project will be equally divided between the City and IRWD service areas. IRWD - contributed funds will be used only Page 1 of 7 within IRWD's service area. The specific terms and conditions governing the elements of this Agreement are set forth hereinafter. Nothing in this Agreement is intended to be deemed to be the provision of any service to water customers or property owners or other activity outside of each party's respective service area, and to the extent the performance of any aspect of this Agreement can be considered a "service," California Government Code Section 54981 permits a local agency to contract with another local agency for performance by the latter of municipal services or functions within the territory of the former. ARTICLE 2. RESPONSIBILITIES OF CITY City agrees to the following responsibilities: A. Manage the Project per the terms of the Prop 84 Grant including preparation of quarterly progress reports and a final report. B. Manage the contract between the City and Valley Soil, Inc (the "Contractor "), to perform the Project work, which includes marketing, site visits, installations of water efficiency equipment, customer service and training, data collection and compilation, rebate application preparation, technical support and reporting. C. Coordinate with IRWD to select products acceptable to IRWD within its service area for the installation of water efficiency equipment and devices. D. Provide IRWD with customer participation data, list of equipment and devices installed, date of installation, site survey information, and cost and rebate information in an electronic database on a monthly basis for any IRWD program participants and other Project information as requested by IRWD. E. Provide IRWD with a copy of the Contractor - prepared weekly work plan. Ensure that the Contractor directly notifies IRWD of any customer- service related issues involving IRWD customers within 24 hours, and provide IRWD with status updates until the issue is satisfactorily resolved. F. Notify and invite the participation of IRWD staff at Project meetings. G. Provide IRWD with draft copies of any materials to be distributed to or used with IRWD customers, for review and approval by IRWD prior to their use. F.I. Working with IRWD, assist the Contractor in reviewing water usage records to identify high landscape - irrigation water usage areas in the Newport Coast watershed. I. Based on the review of water usage records, work in concert with IRWD to identify target areas for marketing the Project in IRWD's service area. Page 2 of 7 J. Provide post - installation inspections within the City's service area. K. In addition to Program funding, provide $150,000 of City co- funding for the Project for sites within the City of Newport Beach water service area. Obtain rebates from the Municipal Water District of Orange County ( "MWDOC ") for the Project irrigation controllers installed in the City's and IRWD's service areas, and apply such rebate funds to purchase and install additional controllers, to be equally divided between the City's and IRWD's service areas. L. Receive IRWD co- funding provided under Article 3(F), and apply such amounts to the Project in IRWD's service area. M. Allocate a target minimum of 300 irrigation controllers for the IRWD service area. The target is based on an assumed average frilly loaded cost for a residential controller, and represents the allocation of approximately $375,000 of the Program grant funds to IRWD's service area, together with the IRWD co-funding amount and one -half of the MWDOC rebate amount. In the event that installed controllers in the IRWD service area fall short of the target number of 300 controllers, the City will refund to IRWD a pro -rated portion of IRWD's co- funding contribution, based on a fully loaded cost of $500 per controller. City and IRWD will review the Project expenditures annually after the effective date of this Agreement and discuss any reallocation of grant funding. By mutual agreement, grant funds may be reallocated and Party co- funding may be adjusted based upon actual customer participation levels in the City and IRWD water service areas. Additional controllers above the 300 minimum target amount may be available to IRWD at a fully loaded cost of $500 per unit. N. The City agrees, within the requirements of the Public Records Act, to protect all IRWD customer database information in confidence, to the same degree of care and legal responsibility as the City protects its own confidential and proprietary information from disclosure. In the event a public records request is made for information regarding IRWD customers, the City shall provide prompt notice to IRWD in order to provide IRWD with the opportunity to pursue the applicable action for withholding any such records form disclosure. The City shall cause and require the Contractor and any consultants with access to IRWD customer data to protect IRWD data as confidential and proprietary and ensure that the data is only used for the express approved purposes of this program. ARTICLE 3. RESPONSIBILITIES OF IRWD IRWD agrees to the following responsibilities: A. Working with City, provide water usage records and assist the Contractor in reviewing water usage records to identify high landscape- irrigation water usage areas in the Newport Coast watershed. Page 3 of 7 B. Participate in Project planning and coordination meetings. C. Review draft customer materials that will be used within IRWD's service area in a timely manner. D. Based on the review of water usage records, work in concert with City to identify target areas for marketing the Project. Provide the City with a database of eligible customers to be targeted for this Project including customer contact and service address information. E. Provide post - installation inspections within the IRWD service area. F. In addition to Program funding, provide $150,000 in co- funding to City in fiscal year 2011 -2012. All IRWD co- funding shall be allocated by the City entirely to IRWD's service area within the City of Newport Beach. IRWD's customer eligibility and funding is limited to potable water customers and single - family residential recycled water customers. As specified in Article 2, Item M, IRWD's co- funding and grant funding share may be adjusted based on customer participation levels. IRWD's co- funding amount of $150,000 shall not be exceeded without IRWD's prior written authorization. ARTICLE 4. ENVIRONMENTAL DOCUMENTATION City shall be responsible for compliance with the California Environmental Quality Act ( "CEQA ") for activities associated with Project. ARTICLE 5. INDEMNIFICATION & HOLD HARMLESS. City shall defend, indemnify, and hold harmless IRWD, and its officers, employees and agents with respect to any claim, damage, loss, cause of action, lawsuit or proceeding that arises out of or is in any way related to any act or omission by City or its officers, employees or agents in the performance or non - performance of any duty or obligation pursuant to this Agreement. IRWD shall defend, indemnify, and hold harmless the City and its officers, employees and agents with respect to any claim, damage, loss, cause of action, lawsuit or proceeding that arises out of or is in any way related to any act or omission by IRWD or its officers, employees, or agents in the performance or non- performance of any duty or obligation pursuant to this Agreement. ARTICLE 6. BUSINESS LICENSE City shall require its construction contractor and any and all subcontractors to obtain a City of Newport Beach Business License. ARTICLE 7. INSURANCE Page 4 of 7 Contractor is required to carry insurance as specified in the City's Professional Services Agreement with Valley Soil, Inc. dated September 13, 2011. IRWD shall be named additionally insured on contractor's insurance certificates. City shall provide copies of the insurance certificates to IRWD. ARTICLE 8. TERM The term of this Agreement shall extend from the Effective Date of full execution until June 30, 2014, or until the specified responsibilities of the Parties have been fulfilled or rescinded by both Parties, whichever is earlier. ARTICLE 9. NOTICES Any notice or other written instrument required or permitted by this Agreement to be given to either Party shall be deemed received when either personally served or by facsimile, or forty -eight (48) hours after being deposited in the U.S. Mail, postage prepaid, registered or certified, and addressed as follows: To City: City of Newport Beach Attn: Bob Stein Assistant City Engineer 3300 Newport Blvd., P.O. Box 1768 Newport Beach, CA 92658 To IRWD: Irvine Ranch Water District Attn: Fiona Sanchez 15600 Sand Canyon Avenue Irvine, CA 92618 ARTICLE 10. ATTORNEYS' FEES In the event suit is brought by either Party to enforce the terms and provisions of this Agreement, or to secure the performance hereof, each Party shall bear its own attorneys' fees. ARTICLE 11. FORCE MAJEURE Except for the payment of money, neither Party shall be liable for any delays or other non - performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, Act of God, strike or labor dispute, war or other violence, acts of third parties not within City's or County's reasonable control or any law, order or requirement of any governmental agency or authority. ARTICLE 12. GOVERNING LAW & VENUE This Agreement shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the Page 5 of 7 sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding the provisions of Code of Civil Procedure Section 394. ARTICLE 13. ENTIRE AGREEMENT This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. ARTICLE 14. WAIVER A waiver of a breach of the covenants, conditions or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. ARTICLE 15. MODIFICATION Alteration, change or modification of this Agreement shall be in the form of a written amendment, which shall be signed by each Party. ARTICLE 16. ASSIGNMENT Neither Party shall assign its performance of this Agreement, nor any part thereof, without the prior written consent of the non - assigning party. Page 6 of 7 ARTICLE 17. TERMINATION This Agreement shall remain in effect during the term unless earlier terminated wider the following procedures: (a) If either Party to this Agreement believes that the other Party has failed to perform any obligation of that Party in accordance with the terms of this Agreement ( "Default "), the Party alleging the Default shall provide written notice ( "Default Notice ") to the other Party, setting forth the nature of the alleged Default. Unless otherwise provided by a specific term of this Agreement, the Party claimed to be in Default shall have (i) with respect to a Default involving the payment of money, ten (10) days after its receipt of the Default Notice to completely cure such Default, and (ii) with respect to any other type of Default, thirty (30) days from the receipt of the Default Notice to completely cure such Default or, if such Default cannot reasonably be cured within such thirty (30) day period, to commence the cure of such Default within the thirty (30) day period and diligently prosecute the cure to completion thereafter. If the Party claimed to be in Default does not cure such Default within the time periods and procedures as set forth herein, the Party alleging Default may then pursue the applicable legal and equitable remedies. (b) In the event either Party determines it is not feasible or permissible to continue to perform this Agreement due to issues regarding inadequate funding of Proposition 84 funds, whether a service or activity is being performed outside of a Party's service area, or because the Project participation is exceeding IRWD's or City's approved not -to- exceed co- funding amount specified in this Agreement, either Party may terminate this agreement upon ten (10) days prior written notice to the other Party. In the event of any such termination, the Parties will remain obligated to perform and pay for any obligation incurred prior to the effective date of said termination unless otherwise prohibited by law or regulation. ARTICLE 18. COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. ARTICLE 19. AVAILABILITY OF FUNDS This Agreement is subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating the Parties to expend or as involving the Parties in any contract or other obligation for future payment of money in excess of appropriations authorized by law. Page 7 of 7 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement be executed on the date first above written. City of Newport Beach, a Municipal Co on of the State of California By: Public Works Director ATTEST: a- Leilani Brown, City Clerk Date: 1�"' � I APPROVED AS TO FORM: By: Michael T rr�s uty City Attorney Date: Page 8 of 7 Irvine Ranch Water District By:� Pa ook, General Manager Date: J;fW t(Z- -- APPROVED AS TO FORM: By:_ Joan C. Legal Counsel — /z —/v Page 9 of 7