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09-1103_SOUTH COAST WATER DISTRICT_D9_Agenda Report
11/3/2009 AGENDA ITEM D9 TO: Honorable Mayor and Members of the City Council FROM: Joe Tait, Interim Utilities Director SUBJECT: Consideration of the Termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo Connection and the Establishment of an Emergency Interconnection at Del Obispo Connection with South Coast Water District (SCWD). RECOMMENDATION: 1. Approve the Termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo Connection and the Establishment of an Emergency Interconnection at Del Obispo with South Coast Water District (SCWD). SITUATION: At its meeting of June 16, 2009, the City Council authorized a version of this agreement (Attachment 1.) South Coast Water District (SCWD) then desired to make the text changes highlighted on Attachment 2. Two changes of substance were added to the agreement. A condition added to article 5 to test the accuracy of the meter annually, and an additional indemnification to article 9 reiterating that SCWD bears no liability should it determine it is unable to supply water through this connection in an emergency or any other event. Since the City has a program for annual meter testing, the condition does not represent a burden. Since the mutual indemnification clause already implies a mutual relief from all liability -in all cases, this addition changes none of the expectations of the City. Staff recommends execution of the agreement. I:I631Ci7:xe Since 1996, the City had been drawing water into its water system from an emergency service connection at Del Obispo ("Del Obispo connection") installed on the Joint Regional Water Supply System (JRWSS) main that extends from the Coastal Junction at the terminus of the East Orange County Feeder No. 2 to the Brandt Reservoir located in the City of San Clemente. This water was used for operational purposes to stabilize wafter pressure in homes and businesses in the south portion of San Juan Capistrano during high demand periods. The parties that held capacity rights in the JRWSS Main designated SCWD as operator pursuant to a "Joint Exercise of Powers Agreement to Operate and Maintain Joint. JWRSS Main dated March 31, 2000. On November 21, 2000, the City entered into a formal agreement with SCWD to lease 1.5 AGENDA ITEM November 3, 2009 Pacie 2 cubic feet per second of capacity for a [ease payment of $60,000 per year. The City's construction of capital facilities including the High West Side pipeline, the Cooks Reservoir, and the Ground Water Recovery Plant have sufficiently strengthened the distribution system so as to remove the need for high demand capacity from the Del Obispo connection. The Del Obispo connection was originally intended for emergency use, and is now being restored to that function. City staff will continue to operate and use this emergency interconnection as it does for other emergency connections. Operations require a manual turn -on and turn-off of the valve feeding water from the JWRSS main to the City system. An emergency is defined as an unusual disruption in service caused by a line break or construction activity that disrupts the normal means of providing service. The interconnection is interruptible if the JWRSS operators determine it is unable to provide water to the City. No additional facilities will be constructed as part of this conversion. COMMISSION REVIEW AND RECOMMENDATIONS: The original version of the Agreement was reviewed by the Utilities Commission at its meeting of March 24, 2009. The Commission recommended the Council approve the Agreement. FINANCIAL CONSIDERATIONS; Entering into this agreement will terminate the payment of an annual fee to $60,000 to JWRSS for the leased capacity of 1.5 cubic feet per second. The cost of operations and maintenance of this facility are included in the operations budget. There are no additional costs associated with the execution of this agreement. NOTIFICATION: South Coast Water District AGENDA ITEM November 3, 2009 Page 3 RECOMMENDATION: By motion, 1. Approve the Termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo Connection and the Establishment of an Emergency Interconnection at Del Obispo with South Coast Water District (SCWD). Respectfully submitted, Joe T it Interim Utilities Director Prepared by, Eric P. Bauman Utilities Engineer Attachments: 1. Original Lease Termination Agreement 2. Compared Lease Termination Agreement 3. Final Lease Termination Agreement AGREEMENT FOR THE TERMINATION OF THE WATER SERVICE ANIS LEASE OF CAPACTIY FIGHTS AT DEL OBISPO AND THE ESTABLISHMENT OF AN EMERGENCY INTERCONNECTION BETWEEN CITY OF SAN JUAN CAPISTRANO AND SOUTH COAST WATER DISTRICT AT DEL OBISPO This Termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo connection and the Establishment of an Emergency Interconnection at Del Obispo ("Agreement") is entered into is to be effective the day of , 2009 by and between the South Coast Water District ("SCWD"), a water district organized and existing under the County Water District Law, Water Code §§30000 et. seq., in its capacity as operator of the Joint Regional Water Supply System (formerly known as the Joint Transmission Main) and the City of San Juan Capistrano, a public corporation ("City„). SCWD and City are sometimes collectively referred to in this Agreement as the "Parties". RECITALS A. SCWD is the designated operator of a certain "Joint Regional Water Supply System," (JRWSS) a domestic water pipeline that conveys water imported from the Metropolitan Water District of Southern California. The JRWSS main extends from the Coastal Junction at the terminus of the East Orange County Feeder No. 2 to the Brandt Reservoir located in the City of San Clemente. The parties that hold capacity or property rights in the JRWSS Main have designated SCWD as operator pursuant to a "Joint Exercise of Powers Agreement to Operate and Maintain the JWRSS Main dated March 31, 2000. SCWD replaced the Tri -Cities Municipal Water District ("TCMWD") as operator of the Joint Transmission Main, effective March 31, 2000, B. City wishes to end its Lease of Capacity and obtain an Emergency source of water supply to certain areas within its boundaries via the existing Del Obispo Connection effective June 30, 2009. C. The water purchased by City from SCWD shall be measured and controlled through a Water Meter Station owned and operated by City. NOW THEREFORE in consideration of the mutual covenants and conditions herein contained, the parties hereby agree as follows: AGREEMENT 11 Water Supply. Subject to the terms and conditions of this Agreement, during an Emergency, and if SCWD in its own discretion has the capacity in the JRWSS main; SCWD agrees to provide water to City; using the Del Obispo connection. a) EmeLgency. For the purpose of this Agreement an "Emergency" wilt be defined as an unusual service disruption including, but not limited to a line break or construction that an I A _. \ 1 1110LIOM disrupts the normal means of providing service. 3�) Location of Del Obispo Connection. The Del Obispo connection is located within the public right of way of Del Obispo Street Palo Alto Street, approximately 600 feet north of its intersection with Stonehill. 41 Construction of Facilities. The Del Obispo connection is an existing connection, requiring no modifications at this point. 5) Ownership and Maintenance of the Facilitates. The water meter vault, water meter, the Pressure Reducing Valve (PRV), collectively the Del Obispo connection, and the pipeline from the Del Obispo connection into the CITY system will be owned, maintained, and operated by CITY. SCWD in its capacity as the operator of the JRWSS main will operate and maintain the JWRSS main that supplies the Del Obispo connection. 6) Fees and Payments. The fiscal year ending June 30,. 2009 will be the last year for which the annual lease payments are due. Starting July 1, 2009, and subject to the terms and conditions of this Agreement, SCWD`will sell water to City at the prevailing MWDOC water rates and charges, including cost for peaking charges should the utilization of the Del Obispo connection impact the assessment of the peaking charges assessed to JRWSS. D Interruptible Water Supply. The parties acknowledge and agree that SCWD's sale of water to City for its emergency water supply needs is subject to interruption at any time, and for any length of time, in the event SCWD determines in its sole discretion that the participants in JRWSS require the water for their own needs. J Waiver. Each party waives and releases all claims and recourse against the other party, including the right of contribution for loss or damage of persons or property, arising out of or in any way connected with the interruption of the water supply under this Agreement and with the matters each party is obligated to indemnify the other party from and/or against as. set forth in Section 9 below. Indemnity. Each party hereby agrees to mutually indemnify and hold the other party harmless from any and all claims, demands, causes of action, damages, costs and expenses, including attorneys fees, property damage, bodily injuries, personal injury, losses or liabilities, in law or in equity, of every kind and nature to the extent that the same are the result of an error, omission or negligent act of the indemnifying party, its officers or employees, or any other person acting pursuant to its control in performing under this Agreement. 10) Insurance. Each party will maintain their own insurance as required by law. IN 1 1 i Attorney's Fees. If either party hereto commences any action to enforce any provision of this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to damages, equitable or other relief, all costs and expenses incurred, including reasonable attorney's fees. j 21 Successors. This Agreement will be binding upon and inure to the benefit of the parties' successors hereto. 131 Waiver. The failure of either party to insist on compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of such terms, covenants, or conditions of this Agreement by the other party, nor shall any waiver or relinquishment of any right or power conferred by this Agreement at any other time, or times, by a party be deemed a waiver or relinquishment of that right or power for all or any other times. 14 Severability. If any part of this Agreement is held to be illegal or unenforceable or void for any reason by a court of competent jurisdiction, the validity of enforceability of this Agreement as a whole shall not be affected and the remainder and all other provisions of this Agreement shall be given affect to the maximum extent permissible by law. 151 Entire_ Agreement. This Agreement supersedes any and all agreements between the parties with respect to the subject matter herein, and contains the entire agreement between the parties with respect to those matters. 161 Amendment. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in a writing signed by both parties. 17 Notice. Any notice required or permitted to be given hereunder shall be deemed to have been validly or given or made only if in writing and when received by the party to whom it is.directed by personal service, hand delivery, or United States Mail as follows: If to SCWD: Mr. Mire Dunbar, General Manager South Coast Water District P.O. Box 30205 Laguna Niguel, CA 92607-0205 If to City: Eric Bauman, Utilities Engineer City of San Juan Capistrano 32404 Paseo Adelanto San Juan Capistrano, CA 92675 Either party may change its address above at any time by written notice to the other. 18 Recitals/Exhibits: Counterparts. The parties acknowledge and agree the Recitals are true and correct and are incorporated in this Agreement. The Exhibits referenced in this Agreement and attached to this Agreement are incorporated herein. This Agreement may be executed in counterparts, each of which shall be deemed an original. 19.) Termination. Either party may terminate this agreement at any time upon notice to the other. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed. CITY OF SAN JUAN CAPISTRANO Date: , 2409 By: ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney Mark Nielsen, Mayor SOUTH COAST WATER DISTRICT Date: , 2409 By: APPROVED AS TO FORM: Legal Counsel - SCWD 0 In n Mike Dunbar, General Manager AGREEMENT FOR THE TERMINATION OF THE WATER SERVICE AND LEASE OF CAPACTIY RIGHTS AT DEL OBISPO AND THE ESTABLISHMENT OF AN EMERGENCY INTERCONNECTION BETWEEN CITY OF SAN JUAN CAPISTRANO AND SOUTH COAST WATER DISTRICT AT DEL OBISPO This Termination of the Water Service Agreement and Lease of Capacity Rights at Dei Obispo connection and the Establishment of an Emergency Interconnection at Del Obispo ("Agreement") is entered into is to be effective the day of , 2009 by and between the South Coast Water District ("SCWD"), a water district organized and existing under the County Water District Law, Water Code §§30000 et seg., in Its capacity as operator of the Joint Regional Water Supply System (formerly known as the Joint Transmission Main) and the City of San Juan Capistrano, a mu nicipa_(corporation ("City")Deleted. publ,o SCWD and City are sometimes collectively referred to in this Agreement as the "Parties RECITALS A. SCWD is the designated operator of a certain "Joint Regional Water Supply System," (JRWSS) a domestic water pipeline that conveys water imported from the Metropolitan Water District of Southern California. The JRWSS main extends from the Coastal Junction at the terminus of the East Orange County Feeder No. 2 to the Brandt Reservoir located in the City of San Clemente. The parties that hold capacity or property rights in the JRWSS Main have designated SCWD as operator pursuant to a "Joint Exercise of Powers Agreement to Operate and Maintain the JWRSS Main dated March 31, 2400. SCWD replaced the Tri -Cities Municipal Water District ("TCMWD") as operator of the Joint Transmission Main, effective March 31, 2000; City arld SCWD previQuslventered into tl„rat certain Water Serv_ice._Acl.reement and Lease of_Capacitv_Rights Re7el. Obispo Connection, dated November 21, _2000 pursuant to whichWCitactreed to. the lea�e._capacityfor delivery arnF.water.fro,m tire.._Jo_n„t ransrnissian_ amain far avalue, of X60 X00 por_yar (Lease ©f Caacit.y_.} attacbccii m _ ..._._ City wishes to end its Lease of Capacity and has proyided._the_SCWD _with , the requisite notice of its intent; and obtain an Emergency source of water supply to certain areas within its boundaries via the existing Del Obispo Connection effective June 30, 2009. C.The_ _C___desires, no ick utilize the Dei Obispo Connection _strictiv for .._.... ........ ._..... _. emei:gA qy Water effective Jure 30, 2009- Deleted. The water purchased by City from SCWD shall be measured and controlled through a Water Meter NOW THEREFORE in consideration of the mutual covenants and conditions herein < station owned and operated by city. contained, the parties hereby agree as follows: AGREEMENT I Wa..ter. Supply, Subject to the terms and conditions of this Agreement, during an Emergency, and if SCWD in its own discretion has the capacity in the JRWSS main; SCWD 1 ATTACHMENT NO. 2 agrees to provide water to City; using the Del Obispo connection. 2) Emergency. For the purpose of this Agreement an "Emergency' will be defined as an unusual service disruption including, but not limited to a line break or construction that disrupts the normal means of providing service. 3) Location _of_Del Obispo Connection. The Del Obispo connection is located within the public right of way of Del Obispo Street, approximately 600 feet north of its intersection with Stonehill_Drive. Construction of Facilities. The Del Obispo connection is an existing connection, requiring no modifications at this point. 5) Ownership and Maintenance of the f=acilities_ The water meter vault, water meter, the Pressure Reducing Valve (PRV), collectively '`the Del Obispo connection," and the pipeline from the Del Obispo connection into the CITY system will be owned, maintained, and operated by CITY. CITYsmall.. on_._an_..annuai basis perform independent _flow compsrison testing and the results of same shall be provided to SCWD CITY shall provide access to_.the Wmeter for regular SCWD reading of the meter. SCWD in its capacity as the operator of the JRWSS main will operate and maintain the JWRSS main that supplies the Del Obispo connection. 5� Fees and Payments. The Parties hereby agree toterminate the Water Service Agreement and Lease of Capacity Zig at Del Qbispo ,c_onnection.,_The fiscal year ending June 30, 2009 will be the last year for which the annual lease payments are due. Starting July 1, 2009, and subject to the terms and conditions of this Agreement, SCWD will sell water to the CITY at the prevailing MWDOC water rates and charges, including cost for peaking charges.._Sho Id peaking charges occur du_rirtg,anyperiod wherein CITY is using Deleted: should the utilization of the the _Del Obis ,o connection CITY shall,prryld� da�i reaclin s,fior metei_usa e Burin. said Del Obispo connection impact the ^-- �---- assessment of the per(cd.an(jJRWSS_.prrsonnei of the SCWD will .assess such usa e and peaking char es shall be transmitted to CIT`( if appropriate, 7) Interruptible Water Supply. The parties acknowledge and agree that SCWD's sale of water to CITY for its emergency water supply needs is subject to interruption at any time, and for any length of time, in the event SCWD determines in its sole discretion that the participants in JRWSS require the water for their own needs. M Waiver. Each party waives and releases all claims and recourse against the other party, including the right of contribution for loss or damage of persons or property, arising out of or in any way connected with the interruption of the water supply under this Agreement and with the matters each party is obligated to indemnify the other party from and/or against as set forth in Section 9 below. 9) Indemnity. Each party hereby agrees to mutually indemnify and hold the other party harmless from any and all claims, demands, causes of action, damages, costs and expenses, including attorneys fees, property damage, bodily injuries, personal injury, losses 2 i�iE:ai 1)/_4/09 or liabilities, in law or in equity, of every kind and nature to the extent that the same are the result of an error, omission or negligent act of the indemnifying party, its officers or employees, or any other person acting pursuant to its control in performing this Agreement. Natwithstar tiinc the aboyL,CWD s r b(igatiGr to su�.piy__ rrtergency water ais irs_ its mm m discretion as_ta_fhe availabi iter of such water, and in no event shall SCWD's termination of I TY usage k p g ounds for any claim that said termination has resulted in negligence in the operatian of tie JRWSS. Q) Insurance. Each party will maintain their own insurance as required by law. 11) Attorney's Fees. If either party hereto commences any action to enforce any provision of this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to damages, equitable or other relief, all costs and expenses incurred, including reasonable attorney's fees. 12) Successors. This Agreement will be binding upon and inure to the benefit of the parties' successors hereto. 13,E Waiver. The failure of either party to insist on compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of such terms, covenants, or conditions of this Agreement by the other party, nor shall any waiver or relinquishment of any right or power conferred by this Agreement at any other time, or times, by a party be deemed a waiver or relinquishment of that right or power for all or any other times. 14) Severability. If any part of this Agreement is held to be illegal or unenforceable or void for any reason by a court of competent jurisdiction, the validity of enforceability of this Agreement as a whole shall not be affected and the remainder and all other provisions of this Agreement shall be given affect to the maximum extent permissible by law. 151 Entire Agreement. This Agreement supersedes any and all agreements between the parties with respect to the subject matter herein, and contains the entire agreement between the parties with respect to those matters. 16 Amendment. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in a writing signed by both parties. 17) Notice. Any notice required or permitted to be given hereunder shall be deemed to have been validly or given or made only if in writing and when received by the party to whom it is directed by personal service, hand delivery, or United States Mail as follows: 3 i�ine�l 9;'?4�'E79 If to SCWD: µMr. Mike Dunbar, General Manager South Coast Water District P.O. Box 30205 Laguna Niguel, CA 92607-0205 If to City: ___,,_,__Eric Bauman, Utilities Engineer City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 52675 Either party may change its address above at any time by written notice to the other. 18) Recitals/Exhibits: Counterparts. The parties acknowledge and agree the Recitals are true and correct and are incorporated in this Agreement, The Exhibits referenced in this Agreement and attached to this Agreement are incorporated heroin. This Agreement may be executed in counterparts, each of which shall be deemed an original. 19.) Termination. Except for the termination of the Water Service Agreement and Lease of Capacity_,Ric hts_ at _Del Obispo_ Connection, which shall.. be_final .either party may terminate this Acer gmppt at any time upon five_days_notice to the other. 4 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed. Date: I CITY OF SAN JUAN CAPISTRANO 2009 BY: ATTEST: Margaret R. Monahan, Citv Clerk APPROVED AS TO FORM: Mark Nielsen., Mayor itv I.rk _... ______rv__.._._.. ____.... __...City Attorney._ Date: ATTEST: SOUTH COAST WATER DISTRICT 2009 By: APPROVED AS TO FORM: Legal Counsel - SCWD By: GeneraCounsel Mike Dunbar, General Manager 5 incl gr214/0, AGREEMENT FOR THE TERMINATION OF THE WATER SERVICE AND LEASE OF CAPACTIY RIGHTS AT DEL OBISPO AND THE ESTABLISHMENT OF AN EMERGENCY INTERCONNECTION BETWEEN CITY OF SAN JUAN CAPISTRANO AND SOUTH COAST WATER DISTRICT AT DEL OBISPO This Termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo connection and the Establishment of an Emergency Interconnection at Del Obispo ("Agreement") is entered into is to be effective the day of , 2009 by and between the South Coast Wafter District ("SCWD"), a water district organized and existing under the County Water District Law, Water Code §§30000 et seg., in its capacity as operator of the Joint Regional Water Supply System (formerly Known as the Joint Transmission Main) and the City of San Juan Capistrano, a municipal corporation ("City"). SCWD and City are sometimes collectively referred to in this Agreement as the "Parties". RECITALS A. SCWD is the designated operator of a certain "Joint Regional Water Supply System," (JRWSS) a domestic water pipeline that conveys water imported from the Metropolitan Water District of Southern California. The JRWSS main extends from the Coastal Junction at the terminus of the East Orange County Feeder No. 2 to the Brandt Reservoir located in the City of San Clemente, The parties that hold capacity or property rights in the JRWSS Main have designated SCWD as operator pursuant to a "Joint Exercise of Powers Agreement to Operate and Maintain the JWRSS Main dated March 31, 2000. SCWD replaced the Tri -Cities Municipal Water District ("TCMWD") as operator of the Joint Transmission Main, effective March 31, 2000; B. City and SCWD previously entered into that certain Water Service Agreement and Lease of Capacity Rights Re Del Obispo Connection, dated November 21, 2000, pursuant to which City agreed to the lease capacity for delivery of water from the Joint Transmission Main for a value of $60,000 per year ("Lease of Capacity"), attached by reference; City wishes to end its Lease of Capacity and has provided the SCWD with the requisite notice of its intent; and obtain an Emergency source of water supply to certain areas within its boundaries via the existing Del Obispo Connection effective June 30, 2009, C. The City desires now to utilize the Del Obispo Connection strictly for emergency water effective June 30, 2009; NOW THEREFORE in consideration of the mutual covenants and conditions herein contained, the parties hereby agree as follows: AGREEMENT 1) Water Supply. Subject to the terms and conditions of this Agreement, during an Emergency, and if SCWD in its own discretion has the capacity in the JRWSS main; Final 9/24/09 ATTACHMENT NO. 3 SCWD agrees to provide water to City; using the Del Obispo connection. 2) Emergency. For the purpose of this Agreement an "Emergency" will be defined as an unusual service disruption including, but not limited to a line break or construction that disrupts the normal means of providing service. 3) Location of Del Obispo Connection. The Del Obispo connection is located within the public right of way of Del Obispo Street, approximately 600 feet north of its intersection with Stonehill Drive. 4) Construction of Facilities. The Del Obispo connection is an existing connection, requiring no modifications at this point. 5) Ownership and Maintenance of the Facilities. The water meter vault, water meter, the Pressure Reducing Valve (PRV), collectively "the Del Obispo connection," and the pipeline from the Del Obispo connection into the CITY system will be owned, maintained, and operated by CITY. CITY shall on an annual basis perform independent flow comparison testing and the results of same shall be provided to SCWD. CITY shall provide access to the meter for regular SCWD reading of the meter. SCWD in its capacity as the operator of the JRWSS main will operate and maintain the JWRSS main that supplies the Del Obispo connection. 6) Fees and Payments. The Parties hereby agree to terminate the Water Service Agreement and Lease of Capacity Rights at Del Obispo connection. The fiscal year ending June 30, 2009 will be the last year for which the annual lease payments are due. Starting July 1, 2009, and subject to the terms and conditions of this Agreement, SCWD will sell water to the CITY at the prevailing MWDOC water rates and charges, including cost for peaking charges. Should peaking charges occur during any period wherein CITY is using the Dei Obispo connection, CITY shall provide daily readings for meter usage during said period and JRWSS personnel of the SCWD will assess such usage and peaking charges shall be transmitted to CITY if appropriate. 7) Interruptible Water Supply. The parties acknowledge and agree that SCWD's sale of water to CITY for its emergency water supply needs is subject to interruption at any time, and for any length of time, in the event SCWD determines in its sole discretion that the participants in JRWSS require the water for their own needs. 8) Waiver. Each party waives and releases all claims and recourse against the other party, including the right of contribution for loss or damage of persons or property, arising out of or in any way connected with the interruption of the water supply under this Agreement and with the matters each party is obligated to indemnify the other party from and/or against as set forth in Section 9 below. 9) Indemnity. Each party hereby agrees to mutually indemnify and hold the other party harmless from any and all claims, demands, causes of action, damages, costs and 2 Final 9/24/09 expenses, including attorneys fees, property damage, bodily injuries, personal injury, losses or liabilities, in law or in equity, of every kind and nature to the extent that the same are the result of an error, omission or negligent act of the indemnifying party, its officers or employees, or any other person acting pursuant to its control in performing this Agreement. Notwithstanding the above, SCWD's obligation to supply emergency water is in its discretion as to the availability of such water, and in no event shall SCWD's termination of CITY usage be grounds for any claim that said termination has resulted in negligence in the operation of the JRWSS. 10) Insurance. Each party will maintain their own insurance as required by law. } If either party hereto commences any action to enforce any 11 Attorney's Fees. provision of this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to damages, equitable or other relief, all costs and expenses incurred, including reasonable attorney's fees. 12) Successors. This Agreement will be binding upon and inure to the benefit of the parties' successors hereto. 13) Waiver. The failure of either party to insist on compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of such terms, covenants, or conditions of this Agreement by the other party, nor shall any waiver or relinquishment of any right or power conferred by this Agreement at any other time, or times, by a party be deemed a waiver or relinquishment of that right or power for all or any other times. 14) Severability. If any part of this Agreement is held to be illegal or unenforceable or void for any reason by a court of competent jurisdiction, the validity of enforceability of this Agreement as a whole shall not be affected and the remainder and all other provisions of this Agreement shall be given affect to the maximum extent permissible by law. 15) Entire_ _Agreement. This Agreement supersedes any and all agreements between the parties with respect to the subject matter herein, and contains the entire agreement between the parties with respect to those matters. 16) Amendment. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in a writing signed by both parties. 17) Notice. Any notice required or permitted to be given hereunder shall be deemed to have been validly or given or made only if in writing and when received by the party to whom it is directed by personal service, hand delivery, or United States Mail as follows: Final 9/24/09 If to SCWD: Mr. Mike Dunbar, General Manager South Coast Water District P.O. Box 30205 Laguna Niguel, CA 92607-0205 If to City: Eric Bauman, Utilities Engineer City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Either party may change its address above at any time by written notice to the other. 18) Recitals/Exhibits: Counterparts. The parties acknowledge and agree the Recitals are true and correct and are incorporated in this Agreement. The Exhibits referenced in this Agreement and attached to this Agreement are incorporated herein. This Agreement may be executed in counterparts, each of which shall be deemed an original. 19.) Termination. Except for the termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo Connection, which shall be final, either party may terminate this Agreement at any time upon five days notice to the other. 4 Final 9124/09 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed. CITY OF SAN JUAN CAPISTRANO Date: , 2009 By: ATTEST: Acting City Clerk, Maria Morris Date: , 2009 Mark Nielsen, Mayor APPROVEDa'T' O FO jRM: 6AA I�A Ci y At' me , Omar andoval SOUTH COAST WATER DISTRICT Z Mike Dunbar, General Manager ATTEST: By: Secretary APPROVED AS TO FORM: By: General Counsel 5 Final 9/24/09